RICHARD BRIMAGE v.

STATE TEXAS (09/21/94)

[1] COURT OF CRIMINAL APPEALS OF TEXAS

[2] No. 70,105

[3] 1994.TX.41459 <http://www.versuslaw.com>

[4] delivered: September 21, 1994.

[5] RICHARD BRIMAGE, JR., APPELLANT

v.
THE STATE OF TEXAS

[6] Appeal from KLEBERG County. 105th. Judicial District Court of

Nueces County, Tx.

[7] COUNSEL

[8] For Appellant: W. R. Hitchens, Sam R. Fugate, Kingsville, Tx.

[9] For State: Grant Jones, Former D.A., Corpus Christi, Tx. Robert
Huttash, State's Attorney, Austin, Tx.

[10] EN Banc. Clinton, Judge, Miller, Judge concurring in part & dissenting
in part joined by Judge Baird, Campbell, Judge dissenting opinion
joined by Presiding Judge McCormick & Judges White & Meyers

[11] Author: Clinton

[12] Richard Brimage, Jr. was convicted of the offense of murder in the
course of committing or attempting to commit kidnapping, a capital
offense under V.T.C.A. Penal Code, 19.03(a)(2). The offense occurred
 in Kleberg County; trial was had on change of venue to Comal County.
The jury answered the special issues affirmatively and punishment was
assessed at death in accordance with former Article 37.071, V.A.C.C.P.
Appeal to this Court is automatic. Id., h. In twelve points of error,
appellant challenges, inter alia, the sufficiency of the evidence to
support his conviction and sentence, and the legality of a warrantless
search of his home. We will reverse.

[13] I. Facts

[14] Because appellant challenges the sufficiency of the evidence to uphold

both his conviction*fn1 and sentence, a thorough review of the facts of
the case is warranted.

[15] Early on Monday morning, October 5, 1987, appellant placed a phone

call to Mary Beth Kunkel, a 19-year-old co-ed at Texas A&I
University in Kingsville. Appellant was acquainted with Kunkel
through his employment at the nearby Lockheed plant; his supervisor
there was Kunkel's boyfriend. Appellant's phone call was answered by
Kunkel's mother, to whom he misidentified himself as "George."
Appellant asked Kunkel to come to his residence on West Richard
Street in Kingsville*fn2 to pick Up some drafting tools for her
boyfriend. He told her not to tell her mother where she was going.
Kunkel left home in her car. She was seen by a friend turning onto
West Richard Street shortly before 8 a.m.

[16] Later that day, Kunkel's boyfriend, Michael Beagly, became alarmed
when he found her car parked on the Texas A&I campus. The car was
parked in a place not frequented by Kunkel and her purse was in the
car. Subsequently, a missing persons investigation was begun. By
Wednesday, October 7, 1987, the investigation began to focus on
appellant. The police knew of his acquaintance with Kunkel; knew that
appellant had quit his job without notice; and knew that Kunkel's car
had been found on the Texas A&I campus at a location near appellant's
residence. Throughout the two days of the investigation neither the
police nor appellant's former employers were able to contact him. The
police had also been told that the month before appellant had attempted
to sexually assault another woman.

[17] Sometime about 11:00 a.m. that Wednesday, police officers acted on
 their suspicions and went to appellant's home on West Richard. When
no one answered their knocks at the front door, the officers explored
the outside of the house, peering through the windows and checking
for unlocked doors. The officers found all the doors and windows
locked, the garage door down and the lights out. The officers left the
West Richard residence satisfied that no one was home. It was at this
point that Captain George Gomez, Jr., a detective with the Kingsville
Police Department, assumed supervision of the investigation.

[18] That afternoon, Gomez contacted Roy C. Turcotte, a local attorney and
a relative of appellant Gomez told Turcotte that he suspected appellant
was involved in Kunkel's disappearance and that he wanted to talk to
either appellant or his parents. Gomez also asked Turcotte for
permission to search the residence on West Richard Street. Turcotte
told Gomez that he would find out how to contact appellant's parents.
He also expressly told Gomez that he did not have the authority to
consent to a search of the Brimage residence.

[19] After his telephone conversation with Turcotte, Gomez was called out
to the Rodeway Plaza Inn, a local motel. He was told appellant had
stayed in room 119 the night before and had not been seen since. The
owner of the motel provided Gomez with appellant's room registration
card and his suitcase, which had been removed from his room earlier
in the day. *fn3 Inside appellant's suitcase, Gomez found a number of
pornographic magazines, several items of men's clothing, a piece of an
ace bandage, a woman's bra, a pair of women's underwear, pieces of
what appeared to have been women's pajama bottoms, a jaggedly cut
piece of red cloth that appeared to be blouse material, and a pair of
large scissors. Gomez testified that both the red cloth and the scissors
were "blood stained." Gomez returned to the police station with the
suitcase.

[20] Gomez was met at the station by Turcotte and the Honorable Max
Bennett of the 319th District Court in Corpus Christi. Bennett is
appellant's maternal uncle. Turcotte had called Bennett earlier and told
him of police suspicion of appellant. Bennett had then driven to
Kingsville, and the two attorneys had broken into appellant's home. At
the police station, the two men told Gomez of their break-in and that
there was evidence of "violence" or a "violent act" at the residence.
Gomez asked Bennett for permission to search the house, and Bennett
replied, "Yes, you need to get in there." Without securing a warrant,
the police did just that. See Part III, post.
[21] Within an hour, the police entered appellant's house and began an
exhaustive search of the premises. They found the master bedroom in a
state of disarray. Clothing and other items littered the floor and the
bed. A jewelry box had been knocked over. A heavy blanket had been
placed over a window otherwise screened by both venetian blinds and
drapes.*fn4 Some of the clothing in the room had been cut up, and
blood had been splattered in several places. Not long after the search
began, the police found Kunkel's body in the trunk of a car in the
garage. The body was unclothed from the waist down and bound at the
wrists and elbows. The feet were bound to the elbows behind the body,
causing an arching exposure of Kunkel's genital area. A ligature was
tightly tied around her neck, and a sock had been forced down her
throat.

[22] The police remained at the house for several hours gathering evidence.
The search was suspended at approximately 2:00 o'clock that morning,
and the house was secured. The police returned the following day to
collect more evidence -- again, without a warrant.

[23] Based in part on the evidence obtained from the search of the West
Richard residence, Kingsville police obtained an arrest warrant for
appellant. On Thursday morning, October 8, that warrant was executed
in Corpus Christi. While in the Corpus Christi jail awaiting transfer
back to Kingsville, appellant was interviewed by an investigator from
the district attorney's office. Appellant's written confession provides
the most coherent picture of the events preceding Kunkel's death:

[24] "My name is Richard Lewis Brimage, Jr. I am 31 years old and I live
at 1135 W. Richard, Kingsville, Texas. Last Thursday, October 1,
1987, I started trying to pick up some girls and party with. This went
on through the weekend. On Monday, October 5, 1987 early at about 6
am or 7 am I called Mary Beth Kunkel at home. Her mother ansewered
(sic) and I asked for Mary Beth. She came to the telephone and I told
her I had some engineering tools for a gift for her boyfriend Mike. I
knew if I told her they were for Mike she would come over to my
house. She agreed to come over. She came over and I took her to the
back bedroom where the tools were. As she looked at tools I grabbed
her and she said, What Richard, what.
[25] I was standing behind her and grabbed her by the shoulders. She
struggled and started screaming and I forced her into the master
bedroom. She continued screaming and I kept hitting her and started
chocking her. I wanted her sexually real bad and that is why I lured her
to my house. We wrestled for a while and when she would not stop
screaming, I finally choked her with my hands. I wasn't sure she was
dead, so I started to tie her up up (sic) so she would not struggle
anymore. I got some nylons and pulled her feet behind her back. I tied
her hands to her feet where she was bent out of shape. I remember
seeing blood on her face and blood on my pants.

[26] I want to say that during this time another guy was with me. His name
is Leo Molina. Leo had been with me for the past three or four days. I
woke him up to tell him Mary Beth was coming over. I told him to
wait in the back bedroom where all the struggle took place. While she
was screaming we decided to inject her with some cocaine to stop her
from screaming. We managed to do so. She kept going wild, trying to
escape. I kept telling her to stop screaming. Leo, I remember was
trying to feel up her shorts and touch her between her legs. After I was
certain she was dead, tied up, I took off her shorts, so I could admire
her body. Before this I told Leo to take her car from in front of my
house and park it at the college campus somewhere. While Leo was
gone I picked up Mary Beth and put her in the trunk of my parents'
car."

[27] Appellant's confession was admitted as evidence against him during his
trial, which, because of the pervasive publicity generated by the case,
was transferred from Kleberg County to Comal County.

[28] Molina, who accepted a plea bargain, offered a significantly different,

albeit self-serving, account of the events at appellant's residence. He
testified that appellant had sent him to a back room of the West
Richard residence because someone was coming over to engage in sex
with appellant; that he heard appellant conversing with someone at the
front door of the residence; that he heard struggling and saw appellant
"dragging a female into the back bedroom[;]" that he heard the female
scream, "Please don't hit me. Don't hurt me. I'll do anything[;]" that
responding to appellant's call he went to the master bedroom and saw
appellant striking the female; that he saw appellant inject the female
with cocaine; and that he fled the back bedroom while the struggle was
still going on.
[29] Dr. Joseph Rupp, Medical Examiner for Nueces County, preformed the
autopsy on Kunkel's body. He testified that the results of the autopsy
were consistent with homicide, and that Kunkel could have died from
any one of three causes: (1) manual strangulation; (2) asphyxiation by
the sock obstructing her airway; and (3) ligature strangulation. Rupp
based that analysis on both his autopsy results and appellant's
confession. He testified that he could not determine when, during the
assault by appellant, Kunkel had died:

[30] "Q: Would you tell us if you choke somebody with your hands, how
long it takes until they -- they become unconscious and dead?

[31] A: Well, if you get a good hold and they don't get away momentarily . .
. and you compress those major (blood) vessels, you have about 15
seconds of consciousness.

[32] Q: How long until death?

[33] A: If you compress and you lose consciousness in 15 seconds, you will
die in a couple of minutes at least.

[34] Q: Now, if I were choking someone, is it possible for me to after they

reach unconsciousness become uncertain as to whether I have
successfully killed them or not?

[35] A: Absolutely . . . .

[36] Q: Based on reading (appellant's) confession and doing your autopsy

and all of the evidence in the case . . . you believe that the strangulation
rendered her unconscious and then the sock was applied and then the
ligature was applied?

[37] A: Yes.

[38] Q: Okay. Could you actually pinpoint a time of death, Dr. Rupp?
[39] A: No . . . ."

[40] The medical examiner stated that the struggle that precipitated Kunkel's
death probably was brief, lasting no more that a few minutes. He said
that he found no physical evidence of sexual assault, but that such did
not rule out an assault, and he opined that "the sexual nature of the
crime [was] obvious because of the positioning of the body and the
way the body [was] tied up with the legs spread and the -- the -- the
feet tied back underneath the body with the body arched to expose the
genital area."

[41] At the close of the case, the jury was given the statutory definitions of
attempt, kidnap, restrain and abduct, and it was charged, inter alia, as
follows:

[42] "Now, if you find from the evidence beyond a reasonable doubt that on
or about October 5, 1987, in Kleberg County, Texas, that the
defendant, Richard Brimage, Jr., did then and there intentionally cause
the death of an individual, Mary Beth Kunkel, by strangling her with
his hands or by strangling her with a ligature, or by suffocating her
with a sock, in the course of committing or attempting to commit the
kidnapping of Mary Beth Kunkel, then you will find the defendant
guilty of capital murder as charged in the indictment."

[43] The jury found appellant guilty of capital murder.

[44] During the punishment phase of the trial, the State re-offered the
evidence from the guilt/innocence phase and further called two women
to testify about their encounters with appellant. The first woman was a
topless dancer at a club in Kingsville. On October 8, 1987, just three
days after the murder, appellant was in the club offering dancers
money to come "party" with him. None of the dancers accepted
appellant's offer. Later that night, appellant called the club asking for
this particular woman and again asked if she would come to his motel
room; she declined his invitation and never heard from him again.

[45] The second woman to testify was an acquaintance and school mate of
appellant and one of his sisters. On September 21, 1987, two weeks
before the murder, appellant invited the witness to his house on the
 pretense of surprising his sister, who he claimed had just returned from
a trip. Once the witness was inside the house, appellant told her his
sister was in another room. As she turned toward that room, appellant
hit her over the head with an object, knocked her to the ground and
jumped on top of her. The witness testified that then "something
snapped." Appellant apologized for his behavior, let her up and
allowed her to leave. In spite of appellant's requests that she not tell the
police, the witness reported the incident. No formal charges were filed.

[46] Apart from the testimony of the two women, the only other evidence
the State presented at punishment involved appellant's prior criminal
record. The State proved that appellant had twice been placed on
probation for offenses in Washington State and Texas. On September
30, 1977, appellant entered a plea of guilty to the offense of possessing
stolen property and was placed on deferred adjudication probation for
two years. The offense arose out of a purse snatching incident
involving an 85-year-old woman in Island County, Washington. While
appellant did not commit the actual purse snatching, he was later found
to be in possession of jewelry and more than $250 which had been
taken from the elderly woman. Appellant successfully completed the
two years of probation and was subsequently released from the
disabilities of that crime.

[47] Appellant did not fare as well on probation in Texas. On May 5, 1983,
appellant entered a plea of guilty to the felony offense of forgery by
passing checks.*fn5 Appellant was sentenced to five years confinement
in the penitentiary, but the trial court suspended sentence and placed
appellant on probation for a term of five years. Within two and one-
half years, appellant's probation was revoked for failure to report to his
probation officer, as well as failure to pay a supervisory fee required
after his release from Cenikor, a drug rehabilitation center in Houston.
Following the revocation, appellant was sentenced to a term of two
years in the penitentiary. He was released in January 1987, just ten
months before the instant offense.

[48] Neither the State nor appellant offered expert testimony during the
punishment phase of the trial. Appellant called as witnesses a number
of his relatives and friends, who testified that appellant would not be
dangerous in the future. The two special issues of former Article
37.071(b), supra, were submitted to the jury, which answered both in
the affirmative. Appellant was sentenced to death in accordance with
former Article 37.071(e).
[49] II. Sufficiency of the Evidence

[50] Appellant contends that the evidence introduced at his trial was
insufficient to support both the verdict of guilty and the sentence of
death. Specifically, he contends that he did not kidnap or attempt to
kidnap Kunkel, see V.T.C.A. Penal Code, 20.03, and that the evidence
failed to show beyond a reasonable doubt that there is a probability
that he will "commit criminal acts of violence that will constitute a
continuing threat to society." Former Article 37.071(b)(2), supra. In
addressing both contentions, we will determine "whether, after viewing
the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements . . . beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L. Ed. 2d 560, 573 (1979) (emphasis in the original).

[51] A. The Verdict

[52] Appellant does not contend that the evidence was insufficient to show
beyond a reasonable doubt that he murdered Kunkel. Instead, he
argues that the evidence was insufficient to support the kidnapping
allegation that elevated the offense to capital murder.

[53] Appellant directs our attention to Guerra v. State, 690 S.W.2d 901
(Tex.App. - San Antonio 1985, no pet.), in which a court of appeals
found the evidence sufficient to show capital murder committed during
the course of kidnapping or attempted kidnapping. He argues that the
Guerra court based its affirmance on the fact that "the victim was
removed by force and deadly force was used to keep her in the
vehicle." He contends that his case is distinguishable from Guerra in
that "there is no evidence that the victim was removed under the use or
threat of any force, or that she was held or secreted by Appellant."
Appellant's argument assumes that secretion and the use or threatened
use of deadly force are part of the actus reus of kidnapping. To the
contrary, however, as the discussion post will demonstrate, they are
more correctly construed as components of the mens rea requirement.

[54] Chapter 20 of the Penal Code defines and proscribes the interrelated
offenses of "false imprisonment," "kidnapping" and "aggravated
 kidnapping." "False imprisonment" is the intentional restraint of a
person, which is defined as the "restriction [of] 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." V.T.C.A.
Penal Code, 20.01(1). Kidnapping is the intentional or knowing
"abduction" of a person. "Abduct" is defined as:

[55] "restraint [of] a person with intent to prevent his liberation by:

[56] (A) secreting or holding him in a place where he is not likely to be

found; or

[57] (B) using or threatening to use deadly force."

[58] A problem of statutory construction lurks in the definition of "abduct,"

viz: Do subcategories (A) and (B) modify "restraint" or "intent to
prevent liberation?" In other words, are secretion and deadly force
subsets of the act element of "restraint," or do they modify the mens
rea element of "intent to prevent liberation"? If it is the former, a
kidnapping becomes a completed offense when a restraint with intent
to prevent liberation is accomplished by either secretion or the use or
threatened use of deadly force. If it is the latter, then a kidnapping
becomes a completed offense when a restraint is accomplished, and
there is evidence that the actor intended to prevent liberation and that
he intended to do so by either secretion or the use or threatened use of
deadly force.

[59] We believe the latter construction to be correct. It is true that previous

opinions by this Court have contained language indicating that the
secretion/deadly force components of "abduct" encompass an act
requirement. See Boyle v. State, 820 S.W.2d 122, 138 (Tex.Cr.App.
1989); Huddleston v. State, 661 S.W.2d 111, 112-13 (Tex.Cr.App.
1983). However, the Court in those cases was not directly addressing
this question. Construing secretion/deadly force as an act requirement,
rather than as a component of the specific intent to prevent liberation,
ignores the plain fact that the specific intent requirement of the
kidnapping statute is what distinguishes it from false imprisonment.
False imprisonment is nothing more than an intentional restraint as that
term is statutorily defined. A false imprisonment becomes a kidnapping
when an actor evidences a specific intent to prevent liberation by either
 secretion or deadly force. To hold, instead, that false imprisonment is
elevated to kidnapping by the manner in which a restraint is
accomplished is to ignore the plainly punctuated, unadorned text of the
statute. See V.T.C.A. Penal Code, 20.01 et seq. *fn6

[60] Thus construed, the definitions in Chapter 20 of the Penal Code, when
taken together, provide that kidnapping is the intentional or knowing
restriction of 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, with intent to prevent his liberation by secreting
him or holding him in a place where he is not likely to be found or by
using or threatening to use deadly force. Put more simply: The State
had the burden of proving 1) a restraint made 2) with a specific intent
to prevent liberation by either of two particular means. Thus, secretion
and the use or threatened use of deadly force are merely two
alternative components of the specific intent element. It is therefore not
necessary, as appellant argues, that the State prove a restraint
accomplished by either secretion or deadly force. Instead, the State
must prove that a restraint was completed and that the actor evidenced
a specific intent to prevent liberation by either secretion or deadly
force.

[61] The State's evidence in this cause meets that burden. The restraint is
apparent from the face of appellant's written confession. It began when
appellant dragged Kunkel down the hall of his home; it ended only
with her death. It cannot be gainsaid that appellant restricted Kunkel's
movements in an escalating course of force and intimidation "so as to
interfere substantially with her liberty" by effectively "confining" her
without her consent until he took her life. *fn7 See and compare Earhart
v. State, 823 S.W.2d 607, 618 (Tex.Cr.App. 1991); Boyle, supra, at
138; Rogers v. State, 687 S.W.2d 337, 342 (Tex.Cr.App. 1985);
Sanders v. State, 605 S.W.2d 612, 614 (Tex.Cr.App. 1980); see also
Rodriguez v. State, 646 S.W.2d 524, 526 (Tex.App. - Houston [1st
Dist.] 1982, no pet.)

[62] The underlying "false imprisonment" having been established, the

remaining issue is whether appellant harbored the specific intent to
prevent liberation required by 20.01(2).*fn8 As noted ante, to support a
kidnapping allegation, the State must prove an intent to prevent
liberation by one of two statutory means: secretion or deadly force. In
this cause, a rational jury could infer that appellant intended the
former. The facts adduced at trial in support of this inference include
 the following: 1) appellant's efforts to shield the master bedroom of his
home from outside view by placing a heavy blanket over a window
already screened by both drapes and blinds; 2) appellant's
misidentification of himself to Kunkel's mother and his instruction to
Kunkel to lie about where she was going; 3) appellant's act of injecting
his victim with cocaine in the express belief that this would "calm" her;
4) and the sexual nature of the assault.

[63] From these evidentiary facts the jury could have inferred an intent by
appellant to abduct and, during the course of the abduction, repeatedly
sexually assault Kunkel. *fn9 That is, a jury could have inferred that
appellant intended to lure Kunkel to his home by deceit, subdue and
restrain her by force, and conceal her in a bedroom of his home to
prevent her liberation for the purpose of repeatedly assaulting her
sexually. It is not necessary that this Court find to its own satisfaction
that such was appellant's intent. It is enough for us to find that "any"
rational jury could have so found beyond a reasonable doubt. Given
the evidence adduced at trial, we cannot say this jury's verdict was
irrational. Jackson v. Virginia, supra. We hold the evidence was
sufficient to support a verdict of guilty to the charge of capital
murder. *fn10

[64] B. The Sentence

[65] We bring the same standard of review to bear on appellant's claim that
the evidence is insufficient to support an affirmative finding of future
dangerousness, viz: After viewing all the evidence in the light most
favorable to the verdict, we ask whether any rational fact finder could
have answered the second special issue affirmatively beyond a
reasonable doubt. Cantu v. State, 842 S.W.2d 667, 674 (Tex.Cr.App.
1992); Huffman v. State, 746 S.W.2d 212, 224 (Tex.Cr.App. 1988).
Appellant finds the facts of his case "remarkably like those of
Huffman, " supra, and contends that the "evidence here is likewise
insufficient to support that [affirmative] finding." The State, without
citation to supporting case law, contends that "there is ample evidence
in this record to support the jury's verdict."

[66] We agree with the State. This offense rises above the level we were
concerned with in Huffman, supra. This was not a spur-of-the-moment
offense, but one that a jury could have found to be both "calculated"
and "cold-blooded." Huffman, 746 S.W.2d at 223 (quoting Roney v.
 State, 632 S.W.2d 598 (Tex.Cr.App. 1982). Appellant lured Kunkel to
his home by deception. The jury implicitly found that he intended to
kidnap her. The sexual nature of the ensuing assault is obvious. Not
content with simple strangulation, appellant made sure of Kunkel's
demise by tying a ligature around her neck and forcing a sock down
her throat. He admitted to stripping the clothes from his victim so that
he could "admire" her naked, lifeless body. In sum, his actions
evidence a depravity that goes beyond that of "every murder"
committed during the course of an attempted kidnapping. Id.

[67] Nor is the record devoid of evidence of future dangerousness outside

the facts of the offense. While a non-violent criminal record, by itself,
is not sufficient under Huffman to support a finding of future
dangerousness, it is evidence presaging a character trait of lawlessness,
which in turn is a component of future dangerousness. In addition to
the appellant's extended criminal record, there also was evidence that
his assault on Kunkel was by no means an isolated incident. One
woman testified that appellant had assaulted her two weeks prior to the
instant offense, under circumstances similar to the instant offense. Two
other women gave testimony by which a jury could reasonably infer
that appellant had a similar design subsequent to the instant offense.
During jury argument in the punishment phase of the trial, the State
characterized these incidents as appellant's failed attempts at
victimizing these women as he had Kunkel. On appeal, the State
argues that these three failed attempts, coupled with the brutal murder
of Kunkel, provided a basis for a rational jury to conclude that
appellant would be a continuing threat to society. We agree. We hold
that the evidence is at least minimally sufficient under Jackson, supra,
to support the jury's affirmative finding of future dangerousness. See
Cantu, supra; Burns v. State, 761 S.W.2d 353 (Tex.Cr.App. 1988).

[68] III. The Search

[69] In his second point of error, appellant contends that the trial court erred
in failing to grant his motion to suppress evidence. He argues that the
warrantless search of his residence violated the Fourth
Amendment. *fn11 Therefore, he contends, the evidence obtained in that
search was improperly used against him at trial in violation of Article
38.23, V.A.C.C.P.

[70] The lack of a search warrant for the Brimage residence was revealed
 during a pre-trial hearing on the appellant's discovery motion:

[71] "[Appellant's Counsel]: Your honor . . . we have done some

investigation and we haven't been able to find a search warrant as to
the residence on Richard Street. We would ask that the State
specifically produce a -- a search warrant in that respect, if they have
one.

[72] [Prosecutor]: There is no search warrant.

[73] [Counsel]: There -- There is no search warrant?

[74] [Prosecutor]: No.

[75] [Counsel]: Then how did you get in the house?

[76] [Prosecutor]: Max Bennett.

[77] [The Court]: What was that?

[78] [Prosecutor]: The manner of entry was of consent.

[79] [Counsel]: Is that what you're going to rely on?

[80] [Prosecutor]: For entering the house, yes, sir."

[81] Later, at a hearing on the appellant's motion to suppress, Captain

Gomez and Judge Bennett gave essentially identical testimony about
the events immediately preceding the warrantless search of the
Brimage residence. Gomez testified that Bennett and Turcotte met him
at the police station, informed him that they had "broken in to the
Brimage residence," and that there was "evidence of a violent act in the
back bedroom." Gomez said that he then asked Bennett for permission
to search the house, and that Bennett replied, "Yes, you need to get in
 there." Bennett also characterized his entry into the Brimage residence
as a "break in." He testified that, after the break-in, and after
discovering the house in disarray, he met with Gomez at the police
station and said, "Mr. Gomez, we're here on a matter to bring
something to your attention. I have just broken into the Brimage house.
There has been a disturbance there, and I think you ought to go over
there."

[82] Gomez testified that he did not ask Bennett whether he had authority
to consent to a search of the Brimage residence, nor did he ask Bennett
to sign a consent-to-search form. Bennett testified that he did not have
permission to enter the house himself, much less grant consent for a
police search.*fn12 He admitted that the Brimages "probably would
have objected" to his breaking into the house, but that he "would have
gone into the house whether they objected or not." Neither Gomez nor
Bennett characterized the police search of the Brimage home as a
response to an "emergency" situation. Gomez testified that he merely
"assumed that he had every right to tell me as a elder, or whatever, I
assumed he was the elder brother of the family, or whatever, to give
me the right to go into that house."*fn13

[83] Both Gomez and Bennett testified that they did not discuss securing a
search warrant for the Brimage residence prior to the search of the
house by the police. When asked whether he, as a district judge, was
"concerned about entering a house on a search for evidence in a
criminal case without a search warrant," Bennett replied that he was
not, explaining, "I was prepared to accept the consequences of doing
something I thought was necessary . . . . I was not concerned about
those legal aspects at all. I was not functioning as a lawyer or as a
judge."

[84] The consequences of an illegal, warrantless search include the

suppression of the evidence obtained in that search. See e.g., Mapp v.
Ohio, 367 U.S. 643, 653-55, 81 S.Ct. 1684, 1691, 6 L. Ed. 2d 1081, L.
Ed. 2d 1081, 1088-90 (1961) (applying the federal exclusionary rule to
the states through the Fourteenth Amendment); Odenthal v. State, 106
Tex. Crim. 1, 290 S.W. 743, 750 (1927) (state statute [now Article
38.23, supra] requires the exclusion of evidence obtained in warrantless
search without probable cause); see generally Robert R. Barton, Texas
Search and Seizure 2.015 (1992). Appellant asked the trial court to
suppress the evidence obtained in the warrantless search of his
residence, but that motion was denied. The trial court's exact reasoning
 in denying the motion is less than crystal clear. *fn14 The trial court's
reasoning is irrelevant, however, so long as any theory articulated by
the State supports the legality of the search. Romero v. State, 800
S.W.2d 539, 543 (Tex.Cr.App. 1990). Furthermore, we will uphold the
trial court's ruling on the admission or exclusion of evidence unless the
record clearly shows that the court abused its discretion. See Maddox
v. State, 682 S.W.2d 563, 564 (Tex.Cr.App. 1985); Green v. State, 615
S.W.2d 700, 707 (Tex.Cr.App. 1980).

[85] The State offers three reasons the trial court did not err in failing to
suppress the evidence obtained from the Brimage residence. First, the
State argues that the search was valid as a "consent" search. Failing
that, the State urges in the alternative that the search was justified
under the "emergency doctrine." And in any event, the State maintains,
the evidence recovered in the search would have been inevitably
discovered, and therefore should not be suppressed. We will address
each of these arguments in turn.

[86] A. Consent

[87] The State correctly notes that consent searches are an established
exception to the warrant and probable cause requirements of the Fourth
Amendment. Schneckloth v. United States, 412 U.S. 218, 93 S.Ct.
2041, 36 L. Ed. 2d 854 (1973). When the State has secured the
voluntary consent to a warrantless search, such a search violates
neither the United States or Texas constitutions, nor the laws of this
state. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L. Ed.
2d 242 (1974); Becknell v. State, 720 S.W.2d 526 (Tex.Cr.App. 1986);
Sharp v. State, 707 S.W.2d 611 (Tex.Cr.App. 1986).

[88] The record is clear that, in the instant case, the police did not have a
warrant authorizing the search of appellant's home. It is also clear that
the police did obtain consent to search the home and that that consent
was given by Judge Bennett. The issue thus becomes whether Bennett
had the authority to consent to the search of appellant's home. Matlock,
415 U.S. at 171, 94 S.Ct. at 993, 39 L. Ed. 2d at 250. The State argues
that Bennett possessed "common authority" over the Brimage's house
because he "had a relationship with the premises sufficient under the
circumstances to give him capacity to give consent." The record
developed at the pre-trial suppression hearings belies this assertion.
[89] In order for a person other than the owner to validly consent to the
search of property, that person must have "common authority over or
other sufficient relationship to the premises or effects sought to be
inspected." Id. The Supreme Court has defined "common authority" as
the "mutual use of the property by persons generally having joint
access or control for most purposes." Id., at n.7. This Court, likewise,
has declared that, in order for a person to validly consent to a search,
that person must have equal control and equal use of the premises
searched. Becknell, supra, at 528; Sharp, supra, at 617. Thus, in order
for Bennett to validly consent to the officers' search, the State must
establish he had joint and equal access to or control over the Brimage
home.

[90] Bennett testified that he did not have any financial interest in the
Brimage's house, that he did not keep any personal property there, and
that he had never spent the night there. Appellant's father, the owner of
the residence, testified that Bennett had neither control over nor access
to the home. He further testified that, at the time of the search in
question, while he and his wife were away on vacation, appellant was
the only person with a key to the house and the only person who was
permitted to use the house. On these undisputed facts, it certainly
cannot be said that Bennett possess-ed any sort of "common authority"
over the property. Consequently, Bennett did not have actual authority
to consent to the search of the Brimage's home.

[91] Absent any actual authority to consent to the search, the State next
argues that it should be sustained because the officers "relied in good
faith" on Bennett's consent to search the house and the circumstances
reasonably indicated that he did in fact have authority to consent to
such a search. In other words, the warrantless search of appellant's
home was justified because the searching officers relied on Bennett's
"apparent authority" to consent to such a search.

[92] The so-called "apparent authority" doctrine was adopted by the United
States Supreme Court in Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct.
2793, 111 L. Ed. 2d 148 (1990). In Rodriguez, the defendant was
arrested in his apartment and charged with possession of controlled
substances. Id., U.S. at 179, S.Ct. at 2796, L. Ed. 2d at 155. The
arresting officers did not have an arrest or search warrant, but entered
the defendant's home with the consent of his former girlfriend. Id.,
U.S. at 180, S.Ct. at 2797, L. Ed. 2d at 156. The girlfriend referred to
the apartment as "ours," told officers that she had clothes and other
 possessions inside, opened the door with a key, and gave consent to
search. Id. In actuality, she no longer lived in the apartment, was not
paying rent or authorized to have a key, and was not to enter the
apartment unless the defendant was present. Id.

[93] In evaluating whether the officers were justified in relying on the

girlfriend's apparent authority to consent to such a search, the Supreme
Court concluded that "whether the basis for such [apparent] authority
exists is the sort of recurring factual question to which law
enforcement officials must be expected to apply their judgment; and all
the Fourth Amendment requires is that they answer it reasonably." Id.,
U.S. at 186, S.Ct. at 2800, L. Ed. 2d at 160. Thus, a warrantless search
pursuant to a third party consent is valid if "the facts available to the
officer at the moment [would] warrant a man of reasonable caution in
the belief that the consenting party had authority over the premises."
Id., U.S. at 188, S.Ct. at 2801, L. Ed. 2d at 161 (internal quotation
omitted).

[94] In reaching its holding, the Supreme Court cautioned that it should not
be understood as suggesting that police officers may always accept any
person's invitation to enter a residence.

[95] "Even when the invitation is accompanied by an explicit assertion that

the person lives there, the surrounding circumstances could
conceivably be such that a reasonable person would doubt its truth and
not act upon it without further inquiry. As with other factual
determinations bearing upon search and seizure, determination of
consent to enter must be judged against an objective standard: would
the facts available to the officer at the moment . . . warrant a man of
reasonable caution in the belief that the consenting party had authority
over the premises. If not, then warrantless entry without further inquiry
is unlawful unless authority actually exists."

[96] Id. (internal quotation and citation omitted).

[97] The closest this Court has come to adopting the apparent authority
doctrine was in McNairy v. State, 835 S.W.2d 101 (Tex.Cr.App. 1991).
Without formally adopting the doctrine, we found it to be of some
value in the resolution of the issues presented. *fn15 In passing, we
noted that the apparent authority doctrine was helpful in determining
 whether the officers were justified "in being where they were" when
probable cause to conduct a warrantless search arose. McNairy, supra,
at 105. Nevertheless, we opined that should "ambiguous
circumstances" arise which cast doubt on the effectiveness of the
consent or the extent of the consent given, the officers "must stop and
make inquiries as to the continued effectiveness of the consent." Id.,
citing Rodriguez, supra.

[98] In the instant case, in order for the warrantless search of appellant's
house to be justified under the apparent authority doctrine, the facts
must show that the searching officers acted reasonably in relying on
Bennett's apparent authority to consent to its search. This was not the
case. The circumstances surrounding Bennett's alleged consent were
such that no person could reasonably believe that he had the authority
to give the consent necessary for the police to enter and search the
Brimage home. At the time of the consent, the police officers were
fully aware that neither Bennett nor Turcotte lived at 1135 West
Richard. The officers knew that they did not have a key to the house
and that they had, in fact, broken into it. Furthermore, the officers
knew that Turcotte had earlier stated that he did not have any authority
to allow the police to search the house. These facts alone are sufficient
to raise "ambiguous circumstances" which should have alerted the
police to the possibility that neither Bennett nor Turcotte could
authorize the search of the property. At a minimum, the police should
have inquired further into the alleged basis for Bennett's authority.
Rodriguez & McNairy, both supra. But as Gomez and a second officer
admitted at the pre-trial hearing, no one ever questioned Bennett about
his authority, or lack thereof. On these facts, it cannot be said that the
police officers acted reasonably in relying on Bennett's alleged consent
as their authority to dispense with getting a search warrant in order to
enter and search appellant's home.

[99] B. Exigent Circumstances

[100] The State also argues that the warrantless search of appellant's home
was an "emergency search" justified by the police officers' belief "that
the missing girl might be in the house and that she might be injured
and in need of assistance to save her life." Appellant argues that the
facts developed at the pre-trial hearing clearly show that "this was not
a situation where immediate entry [of appellant's residence] was
necessary because [the officers reasonably believed] a person was in
need of immediate aid or medical assistance." To the contrary,
 appellant asserts, "it was obvious [to the officers] that no one was
home." We agree.

[101] It is generally accepted that "the Fourth Amendment does not bar
police officers from making warrantless entries and searches when they
reasonably believe that a person within is in need of immediate aid."
Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L. Ed.
2d 290, 300 (1978); Janicek v. State, 634 S.W.2d 687 (Tex.Cr.App.
1982); Bray v. State, 597 S.W.2d 763 (Tex.Cr.App. 1980). This
exception is commonly referred to as the emergency doctrine. Bray,
597 S.W.2d at 764.

[102] This so-called emergency doctrine is nothing more than a specific

application of the exigent circumstances exception to the Fourth
Amendment's warrant requirement. Whether the circumstances
surrounding the officers' warrantless entry and search be characterized
as exigent or that of an emergency, both may serve to exempt the
officers' actions from the warrant requirement of the Fourth
Amendment. Under the emergency doctrine, the exigency which may
render the warrantless entry and search reasonable is the officers' "need
to act immediately to protect or preserve life or to prevent serious
injury." Id.

[103] As is true of every warrantless search of a residence, the burden of

proof is on the State to justify the search. In order to justify the search
of a residence under the emergency doctrine, the State must show 1)
that the officers had probable cause to search the residence, and 2) that
obtaining a search warrant was impracticable because the officers
reasonably believed there was an immediate need to act in order to
protect or preserve life or to prevent serious bodily injury. Id; Brown v.
State, 481 S.W.2d 106 (Tex.Cr. App. 1972). This is not to say that the
State must prove an actual emergency existed at the time of the
officer's warrantless entry. The State need only show that the facts and
circumstances surrounding the entry and search were such that the
officers reasonably believed that an emergency existed which made
obtaining a search warrant impracticable. Id. Courts must use an
objective standard of reasonableness in assessing the officers' belief
that such an emergency actually existed. Id., 597 S.W.2d at 765;
Janicek, 634 S.W.2d at 691.

[104] The State argues that the warrantless search of appellant's home is
 justified because the police believed that the missing girl might be in
the house and that she might be injured or in need of assistance. The
facts developed at the pre-trial hearing, however, do not bear this out.
Quite to the contrary, the police characterized the search as
"evidentiary" in nature. The decision to search the residence was
arrived at almost casually, based entirely on the "consent" granted by
Bennett. The police were not expecting to find a body at the house,
much less an alive and injured victim in need of assistance. See n.l3,
ante. We therefore reject the State's argument. *fn16

[105] C. Inevitable Discovery

[106] Having determined that the officers' warrantless search of appellant's

home is insupportable under either a theory of third party consent or
the emergency doctrine, it follows that the search was unlawful and
any evidence seized as a direct result of the search must be excluded.
Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652
(1914); Article 38.23, supra. Nevertheless, the State cites Nix v.
Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L. Ed. 2d 377 (1984), and
urges this Court to adopt the inevitable discovery doctrine.

[107] In Nix, the Supreme Court crafted an exception to the federal

exclusionary rule, one which allows the admission of evidence
obtained through an illegal search when the State shows by a
preponderance of the evidence that the evidence inevitably would have
been discovered by lawful means. Id. The State contends such was the
case below, in that either appellant's parents or passersby would have
eventually discovered the victim's body. That contention, however,
rests upon unsubstantiated assumptions which the State did not raise
before the trial court, and which, consequently, the appellant did not
attempt to rebut.

[108] Even had this issue been developed below, however, its resolution
would be irrelevant to our discussion today. At trial and on appeal
appellant has asked that the evidence seized pursuant to the illegal
search of his home be excluded under Article 38.23, supra. This Court
recently held that federal inevitable discovery doctrine is inapplicable
to Article 38.23. Garcia v. State, 829 S.W.2d 796, 800 (Tex.Cr.App.
1992) (plurality opinion). We see no reason to revisit that holding here.
[109] D. Harm Analysis

[110] Having found error in the admission of the evidence taken in an

unlawful search, our rules require that we "reverse the judgment under
review, unless [we] determine . . . beyond a reasonable doubt that the
error made no contribution to the conviction or punishment.
Tex.R.App.Pro., Rule 81(b)(2); see also Harris v. State, 790 S.W.2d
568 (Tex.Cr.App. 1989). Rule 81(b)(2) requires that we ask "whether
there is a reasonable possibility that the evidence complained of might
have contributed to the conviction." Harris, supra, at 585, quoting,
Fahy v. Connecticut, 375 U.S. 85, 88, 84 S.Ct. 229, 231, 11 L. Ed. 2d
171 (1963). Here, the evidence complained of includes, inter alia, the
body of the victim, as well as photographs, fingerprints, clothing, and
hair and blood samples the police gathered in their investigation of the
crime scene. We cannot say beyond a reasonable doubt that this
evidence did not contribute to the conviction.

[111] IV.

[112] Having found that the search of appellant's home was illegal, and that
evidence obtained in that search was admitted against him at trial in
violation of Article 38.23, supra, and that the error in admitting the
evidence was not harmless beyond a reasonable doubt, we reverse
appellant's conviction and remand the cause to the trial court.

[113] CLINTON, Judge

[114] (Delivered: September 21, 1994)

[115] EN BANC

[116] CONCURRING AND DISSENTING OPINION

[117] I agree that the search and seizure conducted by the police at
Appellant's home violated his constitutional rights. However, the
plurality further holds that the evidence was sufficient to support
Appellant's capital murder conviction based on kidnapping, under their
 interpretation of 20.03 of the Texas Penal Code. Because I cannot
agree with the plurality's construction of the Texas kidnapping statute,
I am compelled to dissent.

[118] I.

[119] Based upon a convoluted and strained reading of Penal Code 20.03, the
plurality holds that no significant degree of movement is required to
support the offense of kidnapping. They conclude that a kidnapping
occurs "when a restraint is accomplished, and there is evidence that the
actor intended to prevent the victim's liberation and that he intended to
do so by either secretion or use or threatened use of deadly force."
Plurality Slip Opinion at 11. Such a reading is contrary to the historical
development of kidnapping law in Texas and the United States
generally. Worse, this interpretation would turn virtually any assault
into a kidnapping.

[120] To support a finding of kidnapping or attempted kidnapping, two key

elements must be present: restraint and movement. After a careful
review of general Texas kidnapping cases, as well as the case law of
some of our sister states, it is apparent that two diametrically opposed,
prevailing views exist on the movement element. One view is that a
slight movement is a sufficient basis to find kidnapping, and the other
view is, of course, that kidnapping requires a substantial movement.

[121] A. Texas Statutory Development

[122] Kidnapping is a crime with deep roots in the common law. See 4
WILLIAM BLCKSTONE, COMMENTARIES 219. In England,
kidnapping once required that the victim be removed from the country
in order to constitute the crime, and the violation was punished as a
misdemeanor. Id. Adult men, generally, could not be kidnapped. Id.
Eventually, removal from the country was no longer required, but a
substantial movement was. Francis Wharton, WHARTON'S
CRIMINAL LAW 210 (C.E. Torica ed., 14th ed. 1979 & Supp. 1992).

[123] The United States adopted the British definition and gradually altered
it until the law required only that the victim be moved across state
lines. Id. Over time, however, the distance of movement necessary to
 satisfy the definition of kidnapping shrunk until most states defined the
crime without reference to interstate transport. Id.

[124] According to the former law in Texas, a child 17 or under could be

kidnapped if concealed from or taken from his parents, but an adult
could only be kidnapped if the motive was to remove that person from
the State. TEX. PENAL CODE ANN. art. 1177 (repealed 1974).
Furthermore, the term "abduction" was reserved only for those
instances where one falsely imprisoned a woman with intent to "force
her into a marriage or for the purpose of prostitution." Id. art. 1179.

[125] Our current Penal Code modified the earlier requirements and 20.03
now defines the act of kidnapping as intentionally or knowingly
abducting another person. TEX. PENAL CODE ANN. 20.03 (Vernon
supp. 1988). Abduction is defined as "[restraining] 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. Id. 20.01(2). "Restrain" is in turn defined as "[restricting]
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." Id. 20.01(1).

[126] B. Texas Kidnapping Cases

[127] Texas law does not impose a minimal requirement for restraint other
than the fact that the interference with the person's liberty must be
substantial. Earhart v. State, 823 S.W.2d 607, 618 (Tex. Crim. App.
1991) (citing Rogers v. State, 687 S.W.2d 337 (Tex. Crim. App.
1985)). Neither does it require that the interference be for a minimum
length of time. Rogers, 687 S.W.2d at 342 (citing Rodriguez v. State,
646 S.W.2d 524 (Tex. App. -- Houston [1st Dist.] 1982, no pet.)).
Nevertheless, an examination of past cases reveals that most contain an
interference that is more substantial than that found in the present
case.*fn1

[128] In Earhart, the appellant was convicted on the basis of circumstantial

evidence after a young girl was abducted and murdered. 823 S.W.2d at
611-618. The definition of restraint was satisfied because 1) the girl
was under 14 years of age and could not have consented to
accompanying Earhart, 2) she was discovered in the woods far from
 home, and 3) was bound and shot in the head. Id. at 618. Therefore, by
moving the girl far away from home, her liberty had been substantially
interfered with and, since the State was not required to disprove
consent in that case, even circumstantial evidence was a proper basis
for establishing kidnapping.

[129] In Gribble v. State, evidence, including the defendant's own testimony,

indicated that the victim was removed from her house and taken to
some woods (10 miles away) in an apparent effort to keep the victim
from reporting that he had sexually abused her. 808 S.W.2d 65, 68
(Tex. Crim. App. 1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856,
115 L. Ed. 2d 1023 (1991). Once in the woods, the victim began
screaming and Gribble removed the victim's sash and strangled her
with it. Id. Thus, the kidnapping had already occurred prior to the
murder. Parenthetically, Gribble also states the obvious: that a dead
body cannot be kidnapped. Id. at 72, n.16. Therefore, the binding and
removal of the deceased victim in the case at bar (the coroner's
testimony suggested that she was dead prior to her placement in the car
trunk) is irrelevant to the issue of kidnapping.

[130] C. Other States' Kidnapping Cases

[131] 1. Cases Requiring Slight Movement

[132] Several states have taken the approach that only slight movement is
necessary to support a kidnapping charge.*fn2 Those states "frequently
reason[] that it is the fact of forcible removal, and not the distance of
the removal which constitutes the crime of kidnapping." Robert A.
Shapiro, Seizure or Detention for Purpose of Committing Rape,
Robbery, or Similar Offense as Constituting Separate Crime of
Kidnapping, 43 A.L.R.3d 699, 702 (1972).

[133] During a robbery, in Turner v. Housewright, there was no merger with

the crime of kidnapping where the defendant brought the victims into a
house at gunpoint and then moved them from room to room for four
hours. 599 F. Supp. 1358 (D. Nev. 1984), aff'd, 779 F.2d 29 (9th Cir.
1985).

[134] Arizona long ago held that kidnapping had occurred where the
 defendant moved the victim through a house and outside to a cabana
before committing a rape. State (Arizona) v. Jacobs, 93 Ariz. 336, 380
P.2d. 998 (Ariz. 1963), cert. denied, 375 U.S. 46, 84 S.Ct. 158, 11 L.
Ed. 2d 108 (1963). The Arizona Supreme Court reasoned that, although
the crime scene was small, a kidnapping had occurred because it
"preceded and was complete before the rape." Therefore, the
"component parts of the two crimes [were] distinct and separate." Id. at
1003. Later Arizona cases have followed this view. See e.g., State
(Arizona) v. Williams, 111 Ariz. 222, 526 P.2d. 1244 (Ariz. [Panel op.]
1974) (victim was forced into bedroom at gunpoint and then raped);
State (Arizona) v. Burchett, 107 Ariz. 185, 484 P.2d. 181 (Ariz. 1971)
(child lured to car and then car was pulled into alley).

[135] The Delaware Supreme Court has ruled that, where a victim was forced
into her car under threat of death, the restraint used was a substantial
interference with her liberty (that is, in excess of the usual restraint
incident to the underlying crime of unlawful sexual conduct). Coleman
v. State (Delaware), 562 A.2d 1171 (Del. 1989), cert. denied, 493 U.S.
1027, 110 S.Ct. 736, 107 L. Ed. 2d 754 (1990).

[136] The Virginia Supreme Court has similarly confronted and resolved this
issue. In Hoke v. Commonwealth (Virginia), the court upheld
convictions for robbery, abduction, rape, and capital murder because
the abduction had been separate from the restraint necessary to
perpetuate the rape and robbery where the victim was tied and gagged
for a period of several hours. 237 Va. 303, 377 S.E.2d 595 (Va. 1989),
cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L. Ed. 2d 709 (1989).

[137] Finally, the Kansas Supreme Court has undertaken an in-depth review
of the issue and concluded that, although its kidnapping statute requires
no particular distance of removal in order to constitute the crime, some
limitations are implicated. State (Kansas) v. Buggs, 219 Kan. 203, 547
P.2d 720 (Kan. 1976). The Buggs case, a combination robbery and
rape, delineated the minimum threshold of the crime in this manner:

[138] If a taking or confinement is alleged to have been done to facilitate the

commission or another crime, to be kidnapping the resulting movement
or confinement:

[139] (a) Must not be slight, inconsequential and merely incidental to the
 other crime;

[140] (b) Must not be of the kind inherent in the nature of the other crime;
and

[141] (c) Must have some significance independent of the other crime in that
it makes the other crime substantially easier of commission or
substantially lessens the risk of detection.

[142] For example: A standstill robbery on the street is not a kidnapping; the
forced removal of the victim to a dark alley for robbery is. The
removal of a rape victim from room to room within a dwelling solely
for the convenience and comfort of the rapist is not kidnapping; the
removal from a public place to a place of seclusion is. The forced
direction of a store clerk to cross the store and open a cash register is
not kidnapping; locking him in a cooler to facilitate escape is. The list
is not meant to be exhaustive, and may be subject to some
qualification when actual cases arise; it nevertheless is illustrative of
our holding.

[143] Id. at 731 (emphasis added).

[144] While the Kansas statute differs from our own,*fn3 the Buggs case
summarizes a proposition basic to a finding of kidnapping regardless
of the amount of asportation necessary to implicate the crime:
kidnapping cannot occur unless the act giving rise to it has a separate
meaning from any other crime.

[145] 2. Cases Requiring Substantial Movement

[146] In contrast to the cases cited above, many states adhere to the more
traditional view that movement must be substantial to qualify as
kidnapping.*fn4 These cases generally reason "that movements merely
incidental to the commission of the crime and which do not
substantially increase the risk of harm over and above that necessarily
present in the crime do not constitute the separate crime of
kidnapping." Shapiro, 43 A.L.R.3d at 702.
[147] In Robinson v. U.S., the victim was seized (without a weapon) and
dragged 63 paces before being thrown to the ground. 388 A.2d 1210,
1212 (D.C. Ct. App. 1978). A kidnapping, however, did not occur
because the asportation was incidental to and indistinguishable from
the attempted rape. Id.

[148] The California Supreme Court found kidnapping in a case in which a

robbery victim was moved 10 to 13 blocks while being held under a
gun-like cigarette lighter. In re Earley, 14 Cal. 3d 122, 534 P.2d 721,
723-724, 120 Cal. Rptr. 881 (Cal. 1973). The court discussed a number
of cases, some holding that brief movements or movements within a
single location were not kidnappings, but were part of the intended
offense, and went on to hold that the distance the victim was moved
did substantially increase the risk of harm to the victim. Id. at 726.
Because the movement was not "'merely incidental to the commission
of the robbery[,]'" kidnapping was present. Id. at 726-727 (citations
omitted).

[149] Consistent with the discussion within Parley, a California court of

appeals, in Bryant v. Craven, previously held there was no kidnapping
where, during a robbery, persons were moved around a store. 19 Cal.
App. 3d 933, 97 Cal.Rptr. 40 (Cal. Ct. App. -- 2nd Dist. 1971).
However, kidnapping was ultimately found in that case because some
persons were transported two to three miles in a car. Id.

[150] In Illinois, an aggravated kidnapping conviction was reversed where

the objective, motive, and purpose (rape) of the defendant remained
unchanged until after the rapes were accomplished. People (Illinois) v.
Ford, 44 Ill. App. 3d 94, 357 N.E.2d 865, 869, 2 Ill. Dec. 645 (Ill.
App.--4th Dist. 1976). Additionally, the penalty for the offense of
aggravated kidnapping was less severe than that for rape. Id.

[151] In State (Ohio) v. Malone, an appellate court reversed a case in which

rape and kidnapping convictions were returned. 15 Ohio App. 3d 123,
472 N.E.2d 1122 (Ohio Ct. App. 1984). The victim was forcefully
moved a short distance, immediately robbed, and then raped four
times. Id. at 1123. The court followed precedent from the Ohio
Supreme Court and reasoned that, because kidnapping did not
substantially increase the duration of restraint or the risk of harm to the
victim that was involved in the underlying offense of rape, no
conviction for that crime could stand. Id.
[152] D. Texas kidnapping statute

[153] Without question, the difficulty with the Texas kidnapping statute lies
in its overbreadth; its definition can be read to enlarge virtually any
nonconsensual "restraint" into a kidnapping. Such an interpretation
renders the knowingly or intentionally provisions of abduction
meaningless because it essentially converts this offense into a strict
liability crime. As mentioned, many crimes, especially rape, consist of
some form of non-consensual restraint. Therefore, the act of
restraining is an inherent part of many attempted or completed
assaultive offenses that do not, in every case, implicate kidnapping.
More must be required in order to constitute this crime, and those
factors are movement or confinement (either one) combined with the
intent to abduct. Kidnapping is a crime requiring specific intent, and it
should be charged accordingly; that is, when confronted with a crime
scenario indicating multiple contemporaneous assaultive offenses, the
crime of kidnapping generally will not be implicated unless 1) the
duration of the victim's restraint is increased beyond that attendant to
the associated offense or 2) the defendant's acts greatly increase the
risk of harm to the victim beyond that presented by any other
associated offense.

[154] In the case at bar, the victim was, technically, moved in the moments
prior to the murder. This being so, the record also reflects the
conclusion of the medical examiner regarding three possible causes of
death, the most probable of which would have resulted in rapid
unconsciousness and death, but any of which would have produced
death prior to any meaningful movement of the victim. As such, the
duration of the movement did not exceed the amount of time necessary
for the commission of the murder or sexual assault of the victim.
Movement as limited as this is not an interference with a person's
liberty substantial enough to serve as a basis for a finding of the
restraint element under section 20.01 of the Penal Code. See TEX.
PENAL CODE ANN. 20.01 (Vernon supp. 1988).

[155] Furthermore, while it appears that the victim was technically restrained
or confined during the episode, the intention of the confinement or
restraint must be examined. In this case, Appellant's obvious and
stated intention was to sexually assault the victim, not to kidnap her.
[156] I wanted her sexually real bad and that is why I lured her to my house.
. . . I wasn't sure she was dead, so I started to tie her up so she would
not struggle anymore. I got some nylons and pulled her feet behind her
back. I tied her hands to her feet where she was bent out of shape. . . .
After I was certain she was dead; tied up, I took off her shorts, so I
could admire her body. . . .I know that by calling Mary Beth and luring
her to the house was wrong and I really wanted to have her sexually
and when she did not do so I killed her.

[157] (Tr. Vol. 13, pp. 155-157).

[158] Furthermore, the medical examiner testified that, although he found no

medical evidence of sexual assault, "the sexual nature of the crime
[was] obvious because of the positioning of the body and the way the
body [was] tied up with the legs spread and [the] feet tied back
underneath the body with the body arched to expose the genital area."
(Tr. Vol. 13, p. 213). Clearly the intent of the restraint or movement, if
any, in this case was sexual.

[159] After reviewing all the relevant parts of the record in the case at hand,
it is apparent that the prosecution chose what was, in their opinion, the
easiest possible path to achieve the greatest possible offense suggested
by the facts. As mentioned previously, the indictment originally
alleged murder in the course of committing or attempting to commit
aggravated sexual assault, as well as committing or attempting to
commit kidnapping. The sexual assault portion of the indictment was
lined through with the trial judge's permission. In a bench discussion in
which the defense initially objected to testimony regarding the sexual
nature of the offense, the prosecution candidly revealed that:

[160] The reason the pleadings were struck was not because we didn't
believe we could prove [capital murder in the course of sexual assault]
beyond a reasonable doubt but because we didn't need to prove it up
beyond a reasonable doubt to get a capital murder conviction in this
case. All these offenses are or's [sic], all these attempts are or's [sic],
and it was simply our -- it was my decision, or the decision I made
rather than have the jury confused immediately by the issues that were
not necessary to the proof in this case to get a capital murder
conviction, and because under the state of the evidence, the laws in
this State, res gestae crimes are still admissible and always have been
admissible before juries. And in this particular case, the confession, be
 lured her to the house to engage in sexual conduct, I think the
relevancy of the fact of whether or not sexual conduct occurred goes to
corroborate the confession, and goes to show the motive in this case.
Now that's why I offered it.

[161] Confident of a capital murder conviction, the State made the choice to
abandon the sexual assault portion of the indictment and simply
proceed on the less rigorous proof required under the kidnapping
charge. However, given the absence of any real movement of the
victim prior to her death, the "easier" elevating crime to support a
capital murder charge was more likely committing or attempting to
commit sexual assault.

[162] By this Court announcing that facts such as these amount to the crime
of kidnapping, the jurisprudence of this State will suffer the ills of
strained reasoning. To allow a conviction under such a very narrow
interpretation of either the movement element or the restraint element
of the term restraint, alters the traditional concept of the crime and
criminalizes behavior not usually considered kidnapping. As the term
has always been understood, at least in its plain usage, kidnapping has
required some intentional confinement, restraint or movement of the
victim that is substantial (i.e. separate and distinguishable from the
confinement, restraint or movement attendant to another offense).
Movement that is merely incidental to the commission of a crime, such
as murder, cannot further support a conviction for kidnapping. Indeed,
our own statute requires a substantial interference with the victim's
liberty,*fn5 yet the plurality's construction ignores that requirement and
announces that the very slightest movement of a person, even in the
midst of a different crime, constitutes kidnapping. Such a result will
invariably lead, as here, to unfair extrapolations regarding a
defendant's mens rea to commit the crime of kidnapping and will
certainly produce absurd results.

[163] II.

[164] The Texas kidnapping statute, when linked with a charge of capital
murder under facts such as these, renders infirm section 19.03(a)(2) of
our Penal Code for federal constitutional purposes. The statute, utilized
here as the supporting felony for capital murder, does not numerically
limit the class of murderers subject to the death penalty; many
criminals could, by moving a victim the slightest distance, be subjected
 to capital punishment.*fn6 See generally Gregg v. Georgia, 428 U.S.
153, 196-202, 96 S.Ct. 2909, 2936-2938, 49 L. Ed. 2d 859 (1976).
Upholding this conviction runs the serious risk of allowing section
20.03 of the Penal Code to become a refuge for the capricious charging
of capital murder in situations that otherwise would not support such a
charge. An outcome of that nature places the Texas scheme, at least as
it applies to similar situations, in jeopardy. See Gregg, 428 U.S. at 196-
207, 96 S.Ct. at 2936-2941; see generally Jurek v. Texas, 428 U.S.
262, 276, 96 S.Ct. 2950, 2958, 49 L. Ed. 2d 929 (1976).

[165] In Gregg, petitioner attacked Georgia's aggravating feature that would

authorize the death penalty "if the murder was 'outrageously or
wantonly vile, horrible or inhuman in that it involved torture, depravity
of mind, or an aggravated battery to the victim,' contending that it is so
broad that capital punishment could be imposed in any murder case."
Gregg, 428 U.S. at 201, 96 S.Ct. at 2938. The Supreme Court declined
to answer this allegation while acknowledging that it is "arguable that
any murder involves depravity of mind or an aggravated battery[,]" but
indicated that the "language need not be construed in this way, and
there is no reason to assume that the Supreme Court of Georgia will
adopt such an open-ended Construction." Id. (emphasis added.) This,
the High Court assumed, was shown by the fact that "in only one case
has [the Georgia Supreme Court] upheld a jury's decision to sentence a
defendant to death when the only statutory aggravating circumstance
found was [that described above], and that was a horrifying torture-
murder." Id. (citation omitted.) Although Gregg addressed whether the
Georgia statute arbitrarily resulted in an imposition of the death
penalty by a jury, there is no reason to think the same analysis would
not apply to our system, and the Supreme Court seemed to imply that
the proper case would attract its review of such an issue. Moreover,
Gregg reviewed the Georgia jury procedure in sentencing a defendant,
not the prosecution's selection power over how the defendant is to be
charged. Without question, the acts of the prosecution are more readily
subject to a review for a claim of capriciousness than are those of a
jury.

[166] III.

[167] The plurality concedes that, had they been construing the common law
offense of kidnapping, they might be willing to agree with the
foregoing analysis. Plurality Slip Opinion at 14, n. 10. Because the
offense is presently codified in statutory form, they feel justified in
 ignoring the common law background from which the legislature
drafted the statute. Contrary to the plurality's view, *fn7 a court may
consider the common law when construing a statute. TEX. GOVT.
CODE ANN. 311.023(4) (Vernon 1994). The need to look to the
common law is obvious in a situation, such as this one, where the
statute is ambiguous and results in an unconstitutional
interpretation. *fn8 Furthermore, the provisions of the Penal Code are to
be "construed according to the fair import of their terms, to promote
justice and effect the objectives of the code." TEX. PENAL CODE
1.05(a). The plurality's construction fails to do this. Therefore, I
implore the legislature to amend 20.03 to clearly state that the offense
of kidnapping requires substantial movement, confinement or restraint
that is not merely incidental to the actions required to commit another
offense. *fn9

[168] IV.

[169] Mindful of the foregoing discussion and adherent to the "plain

meaning" teachings of Boykin, *fn10 I do not find that kidnapping is
implicated by these facts. Thus, no basis existed for sending a charge to
the jury that implicated the crime of kidnapping as the underlying
felony for capital murder. Appellant, realizing as much, properly
moved at trial for a directed verdict in his favor, but was denied his
motion. The evidence, viewed in a light most favorable to the
prosecution, is insufficient to support a conviction of capital murder
based on kidnapping. See Nelson v. State, 848 S.W.2d 126, 131 (Tex.
Crim. App. 1992). Therefore, Appellant should be acquitted of the
charge of capital murder. Greene v. Massey, 437 U.S. 19, 98 S.Ct.
2151, 57 L. Ed. 2d 15 (1978); Stephens v. State, 806 S.W.2d 812, 816
(Tex. Crim. App. 1990).

[170] Under the facts and procedural history of this case, I would reverse
Appellant's conviction for capital murder and acquit the defendant.

[171] Miller, J.

[172] Delivered: September 21, 1994

[173] En Banc
[174] Baird, J., joins this opinion.

[175] CAMPBELL

[176] ING OPINION

[177] Because I cannot agree with the plurality's conclusion that the search
of appellant's home was illegal under the Fourth Amendment, I must
dissent.

[178] A trial court's decision at a suppression hearing to admit or exclude

evidence is subject to an abuse of discretion standard of review.
Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993). In the
instant case, I believe the record clearly shows that the trial court did
not abuse its discretion in denying appellant's motion to suppress.

[179] The Fourth Amendment prohibits unreasonable searches and seizures.

U.S. Const. Amend. IV. Warrantless searches are per se unreasonable,
Kelly v. State, 669 S.W.2d 720, 725 (Tex.Crim.App. 1984), subject to
only a few exceptions, one of which is the emergency doctrine. See
Bray v. State, 597 S.W.2d 763 (Tex.Crim.App. 1980). Under the
emergency doctrine, "[a] warrantless search may be justified by a need
to act immediately to protect or preserve life or to prevent serious
injury." Id. at 764. That need to protect or preserve life or to prevent
serious injury justifies police actions that would otherwise be illegal
absent the emergency. Mincey v. Arizona, 437 U.S. 385, 392, 57 L. Ed.
2d 290, 98 S. Ct. 2408 (1978).

[180] Any number of situations may give rise to implementation of the

emergency doctrine. W. LaFave, Search and Seizure 6.6(a) at 702 (2d
ed. 1987). The emergency doctrine may justify entry into a dwelling to
seek a person who has been reported missing. People v. Wharton, 53
Cal. 3d 522, 809 P.2d 290, 324, 280 Cal. Rptr. 631 (Cal. 1991).
Likewise, the emergency doctrine may justify entry into a dwelling to
discover evidence or a "lead" which could reveal the location of the
missing person elsewhere. Chaney v. State, 612 P.2d 269, 277
(Okla.Crim.App. 1980). Once legally inside a dwelling under the
 emergency doctrine, police may seize evidence in plain view. Bass v.
State, 732 S.W.2d 632, 635 (Tex.Crim.App. 1987).

[181] In determining whether a warrantless search was justified by an

emergency, we use an objective standard of reasonableness. Janicek v.
State, 634 S.W.2d 687, 691 (Tex.Crim.App. 1982). Under an objective
standard of reasonableness, we evaluate police conduct in light of the
facts and circumstances known to the police at the time the conduct at
issue took place. Garcia v. State, 827 S.W.2d 937, 941, n.2
(Tex.Crim.App. 1992), citing Scott v. United States, 436 U.S. 128, 138,
56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978). This means that, in analyzing
the decision of the Kingsville police officers in the instant case, to
enter appellant's residence without a warrant, we must take into
account all of the facts at the officers' disposal and determine whether
those facts would warrant a reasonable officer to believe that an
emergency existed.

[182] In the instant case, the following facts were known to the police
officers when they decided to enter appellant's residence without a
warrant: 1) the victim had been missing for over two days; 2) the
victim was acquainted with appellant; 3) the victim was last seen on
the morning of her disappearance in the neighborhood of appellant's
home; 4) the victim's automobile was discovered in a parking lot within
three blocks of appellant's home; 5) approximately one month before,
appellant had lured another female to his residence and had attempted
to sexually assault her; 6) the victim was last seen wearing a red
blouse; 7) the suitcase abandoned by appellant at the motel contained a
piece of red cloth that appeared to be blouse material and a large pair
of scissors, both of which had blood on them; 8) the suitcase also
contained cut-up pieces of women's clothing, including a portion of a
pair of blue pajama pants that had been cut off; 9) according to
appellant's uncle, Judge Bennett, who, at his own initiative, broke into
appellant's home, the legs to a pair of blue pajama pants were in the
master bedroom of appellant's home, along with other pieces of cut-up
women's clothing; 10) according to Judge Bennett, there appeared to
have been a struggle and a "violent act" in the master bedroom.

[183] The officers also were aware of an "extreme urgency" on the part of
Judge Bennett for them to enter appellant's home. According to Captain
Gomez, Judge Bennett told him "you need to get in there."
Additionally, nothing in the record denotes that Judge Bennett
indicated to Captain Gomez that his search of appellant's home was
 exhaustive, so as to exclude the possibility that the victim was
somewhere within.

[184] Taking into account all of the information at the officers' disposal when
they decided to make the warrantless entry into appellant's residence, I
would conclude that those facts would warrant a reasonable officer to
believe that an emergency existed. The plurality dismisses the
possibility of an emergency based on the officers' subjective thought
processes, stating: "The police were not expecting to find a body at the
house, much less an alive and injured victim in need of assistance."
The plurality fails to give effect to our prior case law, which clearly
mandates an inquiry based on objective reasonableness. Janicek, 634
S.W.2d at 691; Bray, 597 S.W.2d at 765.*fn1a Under such an inquiry,
the subjective thoughts and beliefs of the officers are not
determinative; the only consideration is whether the facts would
warrant a reasonable officer in their position to believe that an
emergency existed. See Garcia, 827 S.W.2d at 941.

[185] Even under a purely subjective analysis, however, the record contains
sufficient evidence to support the trial court's denial of appellant's
motion to suppress based on the emergency doctrine. At the
suppression hearings, Captain Gomez testified as follows:

[186] Q: Okay. You weren't looking for -- What you went in and were
looking for was a body, wasn't it?

[187] A: No. No, sir. I was not looking -- I was hoping to find the young girl
alive, sir.

[188] Q: You were looking for a person.

[189] A: I was looking for a person, yes, sir.

[190] A: . . . I was afraid that if (the victim) was being held against her will,
somewhere, she needed to get away or [be] rescued. I didn't know if
she was in that house or not, sir.
[191] At a suppression hearing, the trial court is the sole judge of the
credibility of witnesses and the weight attributable to the witnesses'
testimony. Alvarado v. State, 853 S.W.2d at 23. The trial court may
believe or disbelieve all or any portion of a witness's testimony. Id. I
believe the foregoing excerpts from Captain Gomez's testimony at the
suppression hearings were sufficient evidence upon which the trial
court could have based a finding that the officers' decision to make a
warrantless entry of appellant's residence, to find either the victim or
evidence leading to the victim's discovery at another location, was
subjectively reasonable under the emergency doctrine.

[192] I would also conclude that the seizure of the victim's body from the
trunk of appellant's parents' automobile, located inside the garage
attached to appellant's residence at the time of the search, was justified
under the emergency doctrine. The United States Supreme Court, in
United States v. Ross, 456 U.S. 798, 820-21, 72 L. Ed. 2d 572, 102 S.
Ct. 2157 (1982), stated that "[a] lawful search of fixed premises
generally extends to the entire area in which the object of the search
may be found and is not limited by the possibility that separate acts of
entry or opening may be required to complete the search." *fn2a
Applying this language to the facts of the instant case, the police
officers who entered appellant's home under the emergency doctrine, to
look for the victim or evidence of the victim's whereabouts, were
justified in opening the trunk of appellant's parents' car and retrieving
the victim's body since, in searching for the victim, the officers could
have reasonably believed that the victim was concealed inside. See also
People v. Wharton, 809 P.2d at 324 (officer conducting warrantless
search under the emergency doctrine was justified in cutting through
plastic container located inside victim's residence and retrieving
victim's body). Additionally, the fact that, in the instant case, the
container in which the victim's body was found was an automobile
does not mean that the police needed separate justification to search
inside it. See People v. Powers, 173 A.D.2d 886, 570 N.Y.S.2d 362,
364-65 (N.Y.App.Div. 1991).

[193] Concerning the remaining evidence seized from appellant's residence, I

would find no error regarding its admission at trial. The lawfulness of
an emergency search terminates once the emergency ends. Bray, 597
S.W.2d at 764. However, when police discover a potential homicide
scene, they may undertake a prompt warrantless search of the premises
to see if there are additional victims or if a killer remains on the
premises. Mincey v. Arizona, 437 U.S. at 392. In the instant case, the
police continued to search appellant's residence after they discovered
 the victim's body. It is unclear from the record exactly which pieces of
evidence were discovered before the body was found and which were
discovered afterward. However, the record reflects that each of the
items seized from appellant's residence and later admitted at the trial
were found in locations which would have been in plain view of the
officers when searching for additional victims, or in places in which a
person could have been sequestered. Therefore, I believe there was no
error in the seizure of those items.

[194] Even assuming arguendo that some or all of the items seized from
appellant's residence, other than the victim's body, were seized
illegally, I conclude that any error arising from their admission at
appellant's trial was harmless under Texas Rule of Appellate Procedure
81(b)(2). In order for error to be construed harmless under Rule
81(b)(2), an appellate court must determine that such error was
harmless beyond a reasonable doubt. Arnold v. State, 786 S.W.2d 295,
298 (Tex.Crim.App. 1990). We have previously set forth the applicable
standard for defining harmless error:

[195] When determining whether erroneously admitted evidence is harmless

beyond a reasonable doubt, the question is whether . . . there is a
reasonable possibility that the erroneously admitted evidence
contributed to the verdict obtained. In other words, was there a
reasonable possibility that the error, either alone or in context, moved
the jury from a state of nonpersuasion to one of persuasion beyond a
reasonable doubt as to the issue in question? If the answer to the
question is 'yes,' then the error cannot be considered harmless.

[196] Jones v. State, 833 S.W.2d 118, 127 (Tex.Crim.App. 1992) (citations
omitted).

[197] In the instant case, appellant made a written confession, which was
admitted into evidence at trial. The confession related, in lurid detail,
how appellant enticed the victim to his home and then, once she
arrived, ambushed her and, after a struggle, strangled her. Appellant's
confession was corroborated extensively by the evidence obtained from
the victim's body. Therefore, I conclude that, assuming arguendo that
some or all of the evidence discovered in appellant's residence was
obtained outside the parameters of the emergency doctrine, there is no
reasonable possibility that that evidence moved the jury from a state of
nonpersuasion concerning appellant's guilt to one of persuasion beyond
 a reasonable doubt, given appellant's detailed confession and the
victim's body which was legally discovered under the emergency
doctrine.

[198] I agree with the plurality that there is sufficient evidence in the record
to support the kidnapping element of appellant's capital murder
conviction. However, I cannot agree with the plurality's conclusion that
the search of appellant's home was illegal. I would conclude that the
trial court did not err in admitting the evidence obtained from
appellant's home. Therefore, I would not reverse on the search issue,
and would proceed to address the remaining points of error.

[199] I respectfully dissent.

[200] CAMPBELL, J.

[201] Delivered September 21, 1994.

[202] En Banc

[203] McCormick, P.J., White and Meyers, JJ., join.

Opinion Footnotes

[204] *fn1Appellant frames his third point of error as a challenge to the trial
court's ruling on his motion for instructed verdict. In Madden v. State,
799 S.W.2d 683 (Tex.Cr.App. 1990), this Court held:

"A challenge to the trial judge's ruling on a motion for instructed

verdict is in actuality a challenge to the sufficiency of the evidence to
support the conviction. In reviewing the sufficiency of the evidence,
we consider all the evidence, both State and defense, in the light most
favorable to the verdict. If the evidence is sufficient to sustain the
conviction, then the trial judge did not err in overruling appellant's
 motion." Id., at 686 & n.3 (citation omitted). Thus, to address
appellant's point of error, we will view all the evidence presented at the
guilt phase of the trial.

[205] *fn2 Appellant had lived with his parents at the West Richard Street
residence since January 1987. Appellant had his own room in the
house and had keys to both the house and his parents' cars. Appellant's
parents had left a week earlier on an extended vacation, leaving
appellant in charge of the house.

[206] *fn3 Appellant's twelfth point of error challenges the search of his
suitcase at the motel as violative of the Fourth Amendment. Testimony
at the pre-trial hearing established that on October 6, 1987, appellant
paid cash in advance for a one-night stay at the motel. Check-out time
was noon the following day. On October 7, the motel's housekeeping
staff entered appellant's room on three separate occasions in an attempt
to clean and prepare it for the next occupants. Each time they found the
room in the same condition: Appellant's suitcase and several of his
personal papers were in the room and the room key was on top of a
dresser. At 3:00 p.m. on October 7, a motel manager had the
housekeeper gather all appellant's possessions, pack them in the
suitcase and put the suitcase in the motel's lost-and-found storage area.

Later that day a desk clerk from the motel notified police that appellant
had stayed there the previous night. Officer Gomez arrived at the motel
and searched the contents of the suitcase, having determined that
appellant had "abandoned" it. At the conclusion of appellant's pre-trial
hearing, the trial court found that appellant had in fact abandoned his
motel room and the property therein. The trial court found that
appellant had no reasonable expectation of privacy in the suitcase, and
thus no standing to complain of its seizure. Appellant contests these
findings. Because we will reverse on other grounds, we need not
address this issue. However, the trial court's findings appear to be in
accord with the applicable federal case law. See, e.g., United States v.
Parizo, 514 F.2d 52 (CA2 1975); United States v. Croft, 429 F.2d 884
(CA10 1970).

[207] *fn4 Appellant's father would testify at trial that he and his wife had left
the house clean and tidy and without blankets covering the master
bedroom window.
[208] *fn5 The State did not dwell on the facts of appellant's forgery
conviction, but they were explained by appellant's father as a witness
for the defense: Appellant forged his parents' signatures on checks
drawn on their bank accounts in order to raise money to feed his drug
habit.

[209] *fn6 The Penal Code provides, "'Abduct' means to restrain a person
with intent to prevent 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." Id. So punctuated, the phrase beginning with "by"
clearly modifies "intent to prevent liberation." Had the Legislature
meant for "by" to modify "restrain," then it would have set off the
intervening phrase with commas, viz: "'Abduct' means to restrain a
person, with intent to prevent liberation, by . . . ." Cf. V.T.C.A.
Government Code 311.011 ("Words and phrases shall be read in
context and construed according to the rules of grammar and common
usage.")

[210] *fn7 Indeed, appellant comes close to conceding the restraint element of
kidnapping in his briefs: "At best, the State's evidence shows that the
victim was 'restrained.'" Brief for Appellant at 21.

[211] *fn8 In Jackson, supra, the United States Supreme Court was faced with
a question virtually identical to the one before us: whether the
evidence was sufficient to support a verdict of guilty for an offense
requiring a specific intent. Jackson, 443 U.S. at 309, 99 S.Ct. at 2784,
61 L. Ed. 2d at 567. The Supreme Court in that case found the evidence
sufficient.

[212] *fn9 Admittedly, the above-listed evidentiary facts also are consistent
with a plan by appellant to sexually assault and then kill Kunkel,
without ever intending to abduct her. The evidence of either intent is,
of course, entirely circumstantial. But so was the evidence of intent to
kill in Jackson, supra. The Supreme Court wrote in Jackson:

"Only under a theory that the prosecution was under an affirmative

duty to rule out every hypothesis except that of guilt could this
petitioner's challenge be sustained. That theory the Court has rejected
in the past." Jackson, 443 U.S. at 326, 99 S.Ct. at 2792-93, 61 L. Ed.
2d at 578. This Court has rejected that theory as well. Geesa v. State
 820 S.W.2d 154 (Tex.Cr.App. 1991). And while this is a pre- Geesa
case, the Court has held that the pre- Geesa "reasonable outstanding
hypothesis" analytical construct is, and always was, inapplicable to the
mens rea element of an offense. Matson v. State, 819 S.W.2d 839, 845-
46 (Tex.Cr.App. 1991).

[213] *fn10 Noting that "kidnapping is a crime with deep roots in the
common law[,]" Judge Miller argues that evidence of a kidnapping was
lacking in this cause. S.W.2d , (slip op. at 1). We might be inclined to
agree, were we construing the common law offense of kidnapping.
Instead, we construe the statutory offense of kidnapping. That statute
propels our analysis.

[214] *fn11 Appellant also argues the search of his home violated Article I, 9
of the Texas Constitution, but makes no separate argument to that
effect. Absent any argument or authority that Article I, 9 provides
more protection than the Fourth Amendment or any reason why this
Court should interpret our constitution differently from the federal
constitution, it has been the practice of this Court to "decline to pursue
appellant's Texas Constitutional arguments for him." Johnson v. State,
853 S.W.2d 527, 533 (Tex.Cr.App. 1992).

[215] *fn12 Bennett lives in Corpus Christi, not Kingsville. While he

described his relationship with the Brimages as "close," he testified
that he had never spent the night in the Brimage home nor owned any
interest in the residence. On the issue of authority to consent to a
search of the house, Bennett testified as follows:

"Q: Did the -- Did you receive any kind of authority, any kind
whatsoever from your sister or your brother-in-law (appellant's
parents) authorizing you to allow police to enter that home on October
7th, 1987? A: No, sir. Q: Did the police ever ask you if you had
authority to allow them in the home? A: No. Q: Was that word ever
used? A: No. Q: Did they ask you if they needed to get a warrant? A:
No, sir. Q: Was the word warrant ever used? A: No, sir."

[216] *fn13There were two separate hearings on appellant's motion to

suppress. Gomez and Bennett testified at both hearings.

At one point in the first hearing, Gomez describes his search as

"evidentiary" in nature. Elsewhere in that hearing, he claims to have
 been looking for the then-missing, and presumably alive, victim.
However, Gomez initially makes no mention of any sense of urgency
or of an emergency situation requiring the immediate search of the
Brimage home. Instead, he describes an almost-casual decision to
search the home based solely on Bennett's consent. Indeed, following
the granting of that permission, the search was delayed for as much as
30 minutes while Gomez and Bennett discussed the "conditions"
Bennett had placed on the search, primarily the number of officers to
be involved. At the second hearing, four days later, Gomez was asked
by the prosecuting attorney whether "there was any urgency or
emergency concerning your entry into the house on 1135 West
Richard?" Gomez replied: "Well, sir, I could tell when he (Bennett)
walked in that he was distraught. And once he told me that there -- that
he had gotten into the house and had seen certain items in the house
that match what I had showed in this -- the suitcase that I recovered
just moments earlier, I could sense from his tone of voice the way he
said, 'I' -- 'you need to get in there.' I sensed that there was an extreme
urgency to get in the house. I had no idea what was in that house. I
hadn't anticipated what was in the house and he said, 'You need to get
in there.' And there was an extreme sense of urgency in his voice
conveyed to me, sir." Later, under cross-examination by defense
counsel: "Q: Correct me if I am wrong, your wording was that you did
not anticipate what was ultimately found at that house? A: That's
correct. Q: So you weren't anticipating finding a body or anyone in the
house, were you? A: No, I didn't know what -- I didn't know what his
urgency was, sir. I didn't know if there was -- I didn't know if he had
just seen what he had seen in the bedroom and I had no idea what
happened. He just said, 'You need to get in.' Q: But you are not telling
this Court that it was an emergency situation where someone was
injured over there and you had to get over there to help them, right? A:
I did not know that at the time, no, sir."

[217] *fn14 The State's initial theory in support of the legality of the search
was that appellant had somehow "abandoned" his home. The trial court
rejected that argument, specifically finding appellant had standing to
challenge the search, and the State does not contest this ruling on
appeal.

The trial court then concluded that the Fourth Amendment does not
require the exclusion of incriminating evidence illegally obtained
through a search by private citizens -- an allusion, we presume, to the
break-in by Bennett and Turcotte. That is a correct recitation of the
federal exclusionary rule. E.g. Walter v. United States, 447 U.S. 649,
100 S.Ct. 2395, 65 L. Ed. 2d 410 (1980); Stoker v. State, 788 S.W.2d 1
 (Tex.Cr.App. 1989). However, such a conclusion concerning our
statutory exclusionary rule is by no means certain. See Article 38.23(a),
V.A.C.C.P. ("No evidence obtained by an officer or other person in
violation [of law] shall be admitted.") (emphasis added); see Gillett v.
State, 588 S.W.2d 361, 367-71 (Tex.Cr.App. 1979) (Roberts, J.,
dissenting) (Article 38.23 applies to "officers or other persons alike").
In any event, this issue has no bearing on this case in that it does not
justify the police officers' later entry and search of appellant's
residence. Finally, the trial court mentioned both the "apparent
authority" doctrine and "Bennett's sounding of urgency" in denying the
motion to suppress. While these two concepts are distinct, they are not
mutually exclusive, and the court seems to have relied on both in
justifying the search.

[218] *fn15 Briefly, McNairy was convicted of possessing controlled

substances seized from his mobile trailer house. Officers were
originally called to a disturbance at the property and found a quantity
of drugs and drug paraphernalia. At this point, the officers obtained
voluntary written consent from the property owner to search her house
and all outbuildings on her ten-acre tract of land. The officers then
discovered a methamphetamine lab in the main house. This prompted
the officers to further search the area surrounding the house. Some
distance behind the house, the officers happened upon a mobile trailer
house. As the officers approached, they smelled the strong odor of
methamphetamine emanating from the trailer. They also heard people
rushing from the trailer into the nearby brush. A single officer opened
the back door of the trailer to see if anyone was inside. As he did so,
he noticed chemicals stacked inside the trailer which he knew were
often used in manufacturing methamphetamine. Only then did the
officer question the owner of the property and learn for the first time
that the trailer, itself, was rented to McNairy.

The Court of Appeals applied the apparent authority doctrine to uphold

the officer's initial search of McNairy's home. We held that to be error
but ultimately upheld the officer's search on the grounds that at the
time the officer entered the trailer probable cause existed for the search
and the officer acted reasonably because he was faced with a real
possibility that evidence would be destroyed. Id., at 107.

[219] *fn16 In his dissent Judge Campbell argues that this Court should hold
the search valid under the emergency doctrine. We disagree, and we
pause here to explain why.
First, the dissent argues that "the emergency doctrine may justify entry
into a dwelling to seek a person who has been reported missing" or "to
discover evidence or a 'lead' which could reveal the location of the
missing person elsewhere." Slip op. at 1, citing People v. Wharton, 53
Cal. 3d 522, 809 P.2d 290, 324, 280 Cal. Rptr. 631 (Cal. 1991) and
Chaney v. State, 612 P.2d 269, 277 (Okla.Crim.App. 1980),
respectively. In response, we would point out that Wharton is
inapplicable to this cause in that it holds, as do the cases it cites, that a
warrantless entry into the victim's dwelling in a missing person
investigation may be validated by the emergency doctrine. See
Wharton, supra, at 324; see also Wayne R. LaFave, Search and Seizure
6.6(a), at 702 (2d ed. 1987) (emergency doctrine allows police "to seek
an occupant reliably reported as missing") (emphasis added). As for
Chaney, that case merely stands for the proposition that the emergency
doctrine encompasses searches for evidence that would lead to a
kidnap victim as well as searches for the victim himself. Chaney,
supra, at 277. It in no way changes the core requirement of the
emergency doctrine, viz: that police must reasonably believe there is
an immediate need to protect or preserve life. Next, the dissent points
to ten facts known to the officers that "would warrant a reasonable
officer to believe that an emergency existed." Slip op. at 2. Those facts,
however, show nothing more than probable cause to believe that a
crime had been committed and that appellant was connected to its
commission. See, e.g., id. ("the victim had been missing for over two
days"); id. ("the victim was last seen on the morning of her
disappearance in the neighborhood of appellant's home"). There was
ample probable cause for police to search appellant's home. Probable
cause is not the issue. The issue, as it is in most "emergency"
situations, is whether police were justified in not seeking judicial
determination of probable cause through application for a search
warrant. The only "objective" fact cited by the dissent to support the
existence of an emergency is the officers' awareness of an "'extreme
urgency' on the part of the Judge Bennett for them to enter appellant's
home." Slip op. at 3. We are at a loss to see how an officer's subjective
interpretation of a witness's subjective state of mind is in any way
"objective." The dissent then chides us for "not completely
understanding the difference between an objective and subjective
inquiry." Slip op. at 3 n.1. The dissent does so because we note that the
officers themselves were under no delusion that their search was in
response to an emergency. This, the dissent contends, "fails to give
effect to our prior case law, which clearly mandates an inquiry based
on objective reasonableness." Slip op. at 3, citing Janicek, supra. In
doing so, the dissent ignores that Janicek, as well as every other case
we can find on the subject, premises the emergency doctrine on the
idea that an officer reasonably believed that an emergency existed. The
 objective inquiry required by Janicek et al is into the reasonableness of
the officer's belief. For an officer's belief to be reasonable, the officer
first must have that belief. An objective inquiry is required because we
will not condone a warrantless search based on an officer's belief that
an emergency existed when that belief is unreasonable given the
objective facts and circumstances known to the officer. Here, there was
no such belief at all. See note 13, supra. Finally, the dissent isolates
one passage from a two-day pretrial hearing to support its contention
that police did harbor the subjective belief that an emergency existed.
We have two responses to this argument: First, in relying on that
isolated comment, the dissent distorts the record by failing to consider
it "as a whole," as we are required to do. Only one conclusion can be
drawn from the entire record, and that is that the officers were not
reacting to a perceived emergency. See note 13, supra. Second, even if
the police had believed that an emergency existed, that belief would
have been objectively unreasonable given the complete and utter lack
of evidence that there was an immediate need to protect or preserve
life. Although Judge Campbell offers Professor LaFave's treatise as
support for his dissent, he fails to note that the very section he cites
posits that an emergency search "must not be primarily motivated by
intent to arrest and seize evidence" and that "it is essential that courts
be alert to the possibility of subterfuge, that is, a false claim of such a
purpose where the true intent is to seek evidence of criminal conduct."
LaFave, supra, 6.6(a), at 706. Here, given the record as a whole, it is
clear that police made no such false claim. Of course, they do not need
to; the dissent is willing to make that claim for them.

Dissent Footnotes

[220] *fn1 Both Earhart and Gribble v. State, 808 S.W.2d 65 (Tex. Crim.
App. 1990) are representative of what Texas usually views as
kidnapping; that is, some movement or restraint must occur. Other
similar cases include Boyle v. State, 820 S.W.2d 122 (Tex. Crim. App.
1989), cert. denied, U.S. , 112 S.Ct. 1297, 117 L. Ed. 2d 520 (1992)
(girl solicited a ride in a semi-tractor and was later found in a culvert
outside town dead, bound and gagged); Webb v. State, 760 S.W.2d 263
(Tex. Crim. App. 1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202,
105 L. Ed. 2d 709 (1989) (victims were abducted in a robbery attempt
and forced to drive around town until they were shot and killed);
Lincecum v. State, 736 S.W.2d 673, 679-680 (Tex. Crim. App. 1987),
 cert. denied, 486 U.S. 1061, 108 S.Ct. 2835, 100 L. Ed. 2d 936 (1988)
(mother and son were abducted in their car from church parking lot,
were heard screaming for assistance, and never returned); Vanderbilt v.
State, 629 S.W.2d 709 (Tex. Crim. App. 1981) (opinion after remand),
cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L. Ed. 2d 169 (1982)
(victim was abducted from her car and killed); Garza-Garza v. State,
788 S.W.2d 651 (Tex. App.--Corpus Christi 1990, no pet.) (appellant
killed one victim, placed gun to head of sexual assault victim and told
her she would be killed, then drove her to Florida); Guerra v. State,
690 S.W.2d 901 (Tex. App.--San Antonio 1985, no pet.) (testimony
indicated that, prior to murder, victim was forced from bar to car and
that deadly force was used to restrain her).

[221] *fn2 See, e.g., Harris v. State (Arkansas), 299 Ark. 433, 774 S.W.2d
121, 124 (Ark. 1989) (evidence sufficient for kidnapping where, after
victim's escape, defendant twice chased victim and dragged her from
one building to another); People (Colorado) v. Powell, 716 P.2d 1096
(Colo. 1986) (moving victim from one car to another prior to rape
increased the risk of harm to the victim and constituted kidnapping);
State (Connecticut) v. Jones, 215 Conn. 173, 575 A.2d 216 (Conn.
1990) (grabbing jogger from center of road and dragging her
completely off road provided sufficient movement for kidnapping);
Carron v. State (Florida), 414 So. 2d 288 (Fla. Dist. Ct. App. [2nd
Dist.] 1982), approved of in 427 So. 2d 192, 193 (Fla. 1983) (moving
victims through home at gunpoint, then tying victims and placing them
in a bathtub substantially decreased defendants' chance of detection
and kidnapping was not, therefore, incidental to crime of robbery);
Davis v. State (Georgia), 180 Ga. App. 190, 348 S.E.2d 730, 732 (Ga.
Ct. App. 1986) (evidence of kidnapping sufficient where victim was
forcibly carried to area behind her house prior to rape); State (Kansas)
v. Bourne, 233 Kan. 166, 660 P.2d 565, 567 (Kan. 1983) (moving girls
into bedroom where others would be prevented from aiding them
constituted kidnapping as separate from crime of rape); State (North
Carolina) v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518, 520 (N.C.
Ct. App. 1985), rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986)
(moving victims 35 feet at gunpoint prior to binding them constituted
crimes of kidnapping and robbery because moving the victims was
unnecessary to completion of the robbery); Coram v. Commonwealth
(Virginia), 3 Va. App. 623, 352 S.E.2d 532, 534 (Va. Ct. App. 1987)
(moving victim 20 feet into bushes to facilitate rape attempt constituted
kidnapping because the movement increased the possibility of harm to
the victim by lessening the chance that the crime would be detected).
[222] *fn3Cf. the Kansas law operative at the time of the Buggs case with
our own Penal Code 20.01 et. seq., ante:

Kidnapping is the taking or confining of any person, accomplished by

force, threat or deception, with the intent to hold such person: (a) For
ransom, or as a shield or hostage; or (b) To facilitate flight or the
commission of any crime; or (c) To inflict bodily injury or to terrorize
the victim or another; or (d) To interfere with the performance of any
governmental or political function. KAN. STAT. ANN. 21-3420
(1970).

[223] *fn4 See, e.g., Alam v. State (Alaska), 776 P.2d 345, 349-50 (Alaska
Ct. App. 1989), rev'd on other grounds, 793 P.2d 1081 (Alaska Ct.
App. 1990) (kidnapping not present where restraint incidental to
defendant's intent to commit another crime); White v. State (Arkansas),
301 Ark. 74, 781 S.W.2d 478, 481 (Ark. 1989) (movement of victim
insufficient to sustain kidnapping conviction in addition to rape);
People (California) v. Martinez, 150 Cal. App. 3d 579, 597, 198 Cal.
Rptr. 565, 577-78 (Cal. Ct. App. [2d Dist.] 1984) (movement and
detention of victims within their residence did not constitute
kidnapping where incidental to burglary, robbery and rape); State
(Connecticut) v. Amarillo, 198 Conn. 285, 503 A.2d 146, 157-58
(Conn. 1986) (forcing victim at knifepoint to drive across state lines
prior to sexual assault constituted kidnapping); Brinson v. State
(Florida), 483 So. 2d 13, 15-16 (Fla. Dist. Ct. App. [1st Dist.] 1985),
rev. denied, 492 So. 2d 1335 (Fla. 1986) (where victims moved
between rooms of house and bound, movement considered slight and
inconsequential and kidnapping not implicated as separate from crime
of armed robbery); People (Illinois) v. Young, 115 Ill. App. 3d 455,
450 N.E.2d 947, 958-60, 71 Ill. Dec. 259 (Ill. App. Ct. [2nd Dist.]
1983), later proceeding 136 Ill. App. 3d 107, 482 N.E.2d 1008 90 Ill.
Dec. 725 (Ill. App. Ct. [2nd Dist.] 1985) (seizing victim and throwing
her against wall before raping her did not implicate crime of
kidnapping as apart from crime of rape); Thomas v. State (Indiana),
509 N.E.2d 833, 834-35 (Ind. 1987) (kidnapping present where victim
was forced from car into abandoned building prior to rape); State
(Maine) v. Bunker, 436 A.2d 413, 415-17 (Me. 1981) (kidnapping
distinct from rape where defendant picked up victim and drove 13
miles to a secluded area, had intercourse, then returned her two hours
later to original location); People (Michigan) v. Gwinn, 111 Mich.
App. 223, 314 N.W.2d 562, 569-71 (Mich. Ct. App. 1982) (kidnapping
implicated where victim was forced into car at gunpoint, driven to
another location and raped, then returned to area near her home); State
(Missouri) v. Stewart, 615 S.W.2d 600, 602-04 (Mo. Ct. App. 1981)
 (evidence sufficient to support kidnapping conviction where risk of
harm to victim increased after defendant, at knifepoint, drove victim to
several locations for purpose of rape and detained victim for one hour);
People (New York) v. D'Angelo, 166 A.D.2d 662, 561 N.Y.S.2d 83, 84
(N.Y. App. Div. [2nd Dept.] 1990), appeal denied, 568 N.Y.S.2d 919
(N.Y. 1991) (kidnapping evidence sufficient where rape victim driven
through several New York boroughs and then into New Jersey prior to
rape); People (New York) v. Scattareggia, 152 A.D.2d 679, 543
N.Y.S.2d 742, 744 (N.Y. App. Div. [2nd Dept.] 1989) (kidnapping not
indicated where evidence of crime offered was based on restraint
incidental to and inseparable from the commission of rape and
sodomy); State (South Dakota) v. Reed, 313 N.W.2d 788, 789 (S.D.
1981) (where victim was forced to drive through city to an abandoned
farmhouse, kidnapping, in addition to rape, occurred).

[224] *fn5See TEX. PENAL CODE 20.01(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.").

[225] *fn6In fact, the only murders that would not be subject to capital
punishment under this interpretation would be those in which the
defendant walked up and shot the victim as he was found. If the
defendant so much as told the victim to stand, he could be convicted of
capital murder.

[226] *fn7 See Penal Code 1.05.

[227] *fn8 See discussion in Part II, supra.

[228] *fn9The drafters of the Model Penal Code were aware of the problems
associated with the Majority's interpretation and guarded against them
by requiring a substantial movement or confinement.

A person is guilty of kidnapping if he unlawfully removes another

from his place of residence or business, or a substantial distance from
the vicinity where he is found, or if he unlawfully confines another for
a substantial period in a place of isolation, with any of the following
purposes: a) to hold for ransom or reward, or as a shield or hostage; or
 b) to facilitate commission of any felony or flight thereafter; or c) to
inflict bodily injury on or to terrorize the victim or another; or d) to
interfere with the performance of any governmental or political
function. MODEL PENAL CODE 212.1 (1974) (emphasis added).

[229] *fn10 Boykin v. Stote, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

1a Although the majority cites Bray and Janicek, apparently for the
proposition that an objective standard of reasonableness should be used
in determining whether to justify a warrantless search under the
emergency doctrine, the following language indicates that the majority
is confused about the meaning of objective reasonableness: "The State
need only show [to demonstrate the applicability of the emergency
doctrine] that the facts and circumstances surrounding the entry and
search were such that the officers reasonably believed that an
emergency existed. . . ." A truly objective analysis would focus upon
what a hypothetical reasonable officer would believe, not on what the
officers in the instant case actually believed. Apparently, the majority
does not completely understand the difference between an objective
and a subjective inquiry. 2a I note that the search in Ross, as in the
instant case, was conducted without a warrant.

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