
 







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





No. PD-725-05


NICHOLAS DURAN BALLARD, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

GREGG COUNTY




		Johnson, J., delivered the opinion of the Court, joined by Price, Womack,
Keasler, Hervey, and Cochran, JJ.  Cochran, J., filed a concurring opinion.  Keller, P.J.,
filed a dissenting opinion, joined by Meyers and Holcomb, JJ.

O P I N I O N


	Appellant plead guilty to aggravated kidnapping.  The trial court placed him on deferred-
adjudication community supervision, but one month later, the state asked the trial court to proceed
to adjudication.  After a hearing, the trial court adjudged appellant guilty and sentenced him to fifty
years' imprisonment in the Texas Department of Criminal Justice-Correctional Institutions Division. 
On appeal, the court of appeals dismissed the appeal for want of jurisdiction.  Thereafter, appellant
filed an application for writ of habeas corpus, alleging ineffective assistance of counsel because his
attorney failed to argue that appellant had voluntarily released the victim in a safe place.  This Court
granted the writ and remanded the cause to the trial court for a new punishment hearing on the issue
of voluntary release.  The trial court found that appellant had failed to show by a preponderance of
the evidence that he had voluntarily released the victim in a safe place and reassessed the sentence
of fifty years.  The court of appeals affirmed the judgment and sentence.  Ballard v. State, 161
S.W.3d 269 (Tex. App. - Texarkana 2005).  We granted appellant's sole ground for review. (1) 
	We previously granted relief on applicant's application for writ of habeas corpus, which was
based upon ineffective assistance of trial counsel. Ex parte Ballard, No. 74,823 (Tex. Crim. App.,
delivered November 5, 2003)(unpublished). This current appeal is based upon the punishment-stage
proceedings subsequent to the granting of the writ.  At that proceeding, both the complainant and
appellant testified.
	The record reflects that appellant and the complainant had lived together and had a son. 
Their relationship had been stormy, and the complainant admitted that appellant had beaten her on
numerous occasions and that she had filed reports of threats and harassment with the Rusk County
Sheriff's Office. The threats included declarations by appellant that, if she ever had another
boyfriend, he would kill her.  At the time of the kidnapping, she had moved with her son from the
shared home to her mother's home.  At the hearing, the complainant tried to minimize the events and
appellant's culpability (2) and testified in ways that were contrary to the statements she made to police
at the time of the incident.  On cross-examination by the state, however, she conceded that the
statements made to police at the time of the kidnapping were true.  In those statements, she described
appellant as controlling and an habitual liar and said that she was afraid of him.
	The testimony of both the complainant and appellant reflects that appellant confronted the
complainant in the parking lot of Kilgore College, where she was a student, and that, leaving his own
car in the parking lot, appellant got into complainant's car with her and forced her to drive to his
house.  
	The complainant testified that, during the drive to appellant's home, she sought help from
another motorist, but without result.  When they arrived at appellant's home, they entered and began
to argue.  At some point, they engaged in sexual activity, (3) and then the complainant drove appellant
to his bank and to Kroger's grocery store to pay bills.  During some of this time period, the
complainant was left alone in the car with the car keys.  Appellant emphasized the complainant's
ability to leave.  The state emphasized the complainant's fear of appellant and her fear that he would
come after her if she left him stranded.  The complainant's prior statements indicate that, after they
returned to appellant's house, she tried to leave, but appellant restrained her and that a few minutes
later a Henderson police officer arrived (4) and questioned the complainant outside appellant's home. 
In appellant's presence, the complainant denied that anything was wrong, but when appellant went
into the house, leaving her alone with the police officer, she told the officer that she was there against
her will. (5)  At the officer's instruction, she drove away, leaving appellant at his house.  The
complainant conceded during cross-examination that "the thing that separate[d]" her from appellant
was the Henderson police.  Appellant was arrested at his home the next day.
	We granted habeas corpus relief based upon appellant's claim of ineffective assistance of
counsel for failing to advance the affirmative defense of voluntary release of the complainant in a
safe place at his punishment hearing, which would have reduced the offense to a second-degree
felony.  In granting relief, we vacated the judgment and sentence "insofar as they find [applicant]
guilty of a felony of the first degree and assess punishment" and remanded for further punishment-stage proceedings.  After the trial court conducted those hearings, which included the testimony of
both appellant and the complainant, it found that the defense of voluntary release in a safe place had
not been established and accordingly reassessed the 50-year sentence.
	On appeal, appellant claimed that the evidence was legally and factually insufficient to
support a first-degree aggravated kidnapping conviction.  Specifically, appellant argued that the
evidence was insufficient because no rational trier of fact could have found that the complainant had
not been voluntarily released in a safe place, whether reviewed in the light most favorable to the
verdict or in a neutral light.  The court of appeals disagreed and held the evidence sufficient, saying
that  "[l]egally and factually sufficient evidence supported the trial court's conclusion that
[appellant]'s actions did not constitute 'voluntary release' to trigger mitigation of [appellant]'s
punishment for aggravated kidnapping." Ballard, 161 S.W.3d at 276-77.
	Appellant's sole ground in his petition for discretionary review asserts that the court of
appeals "erred in employing a definition of 'voluntary release' which is inconsistent with the plain
meaning of the Texas kidnapping statute and this Court's well-established jurisprudence."  He argues
that "[a]s a matter of law, the undisputed facts in this record constitute voluntary release in a safe
place" and "[t]he evidence was neither factually or legally sufficient to support the trial court's
judgment to the contrary."
	Appellant acknowledges that aggravated kidnapping is a first-degree felony, punishable by
a term of imprisonment for 5-99 years, or life; except as provided by Tex. Penal Code § 20.04(d),
which provides that "[a]t the punishment stage of a trial, the defendant may raise the issue as to
whether he voluntarily released the victim in a safe place.  If the defendant proves the issue in the
affirmative by a preponderance of the evidence, the offense is a felony of the second degree."  A
felony of the second degree is punishable by a term of imprisonment for a term of not more than 20
years or less than 2 years, with a fine not to exceed $10,000. Tex. Penal Code § 12.33. Thus the
appellant's 50-year sentence was outside the punishment range for a second-degree felony.
	Appellant argues that "[a]s a matter of law, the undisputed facts in this record constitute
voluntary release in a safe place."  He disputes the court of appeals' conclusion that "allowing a
kidnapping victim the ability to escape does not constitute a release." Ballard, 161 S.W.3d at 277. 
Appellant insists that the complainant was completely free to leave, but chose to remain in her own
car in the grocery store's parking lot while he went into the store.  He points to the complainant's
testimony that, during the trip to run errands, appellant left her alone while he went inside and that
"she thought she was free to go and no longer felt as though she was in danger." Id. at 276.
	Appellant also suggests that the court of appeals "essentially grafts onto the kidnapping
statute an exception that the legislature did not include and a result the legislature did not intend; that
is, a kidnapper who knows his victim can never voluntarily release her if he knows where she lives
and they intend to continue their consensual relationship in the future."  He insists that "[i]mporting
such an exception would negate the legislative purpose underpinning the voluntary release provision
... to provide an incentive to kidnappers to release their kidnap victims."
	Appellant lists factors considered in several courts of appeals opinions to determine whether
the actor released the victim in a safe place.  These factors include: the remoteness of the location;
the proximity of authorities or persons who could aid or assist; the time of day; the climatic
conditions; the victim's condition; and the character of, and the victim's familiarity with, the location
or neighborhood.  Appellant concludes that the busy grocery-store parking lot was a safe place when
the complainant was alone waiting in the car at mid-morning and that she was released in that she
was free to leave.  He also suggests that "[t]here was no dispute that the release was voluntary" as
there was no coercive law-enforcement presence or involvement nor force or threat of force from
anywhere.
	We reiterate that appellant's ground for review complains about the court of appeals
"employing a definition of 'voluntary release'[.]"  In our review of the court of appeals's opinion,
we find nothing wrong with its discussion and application of the term "voluntary release."  It
properly discusses and applies our opinion in Brown v. State, 98 S.W.3d 180, 188 (Tex. Crim. App.
2003), in which we favored a narrow definition of "voluntary release," such as in the absence of
rescue by the police or others or escape by the victim. Ballard, 161 S.W.3d at 273.  It also properly
held that its determination in Carreon v. State, 63 S.W.3d 37, 38 (Tex. App. - Texarkana 2001, pet.
ref'd), that in order to trigger § 20.04(d), an accused must have performed some overt and
affirmative act that informs the victim that he has been fully released from captivity is consistent
with Brown's holding that "voluntary release" does not include rescue or escape. Id. at 273-74.
	The court of appeals also discussed the specific facts of this case, applied them properly in
light of Brown's definition of voluntary release, and correctly determined that there was sufficient
evidence to support "the trial court's conclusion that [appellant]'s actions did not constitute
'voluntary release' to trigger mitigation of [appellant]'s punishment for aggravated kidnapping."
Ballard, 161 S.W.3d at 276-77.  The record, which includes testimony from both the complainant
and appellant reflecting that the complainant did not actually extricate herself until police directly
intervened,  supports that holding.   Further, even if the complainant had chosen to drive away from
the bank or grocery without appellant, her actions would have constituted an escape, another contra-indication of voluntary release.  
	We cannot conclude that the court of appeals erred in its interpretation of "voluntary release." 
Accordingly, we overrule appellant's sole ground for review.  The judgment of the court of appeals
is therefore affirmed.

Delivered: June 7, 2006
Publish 
1.  "The Court of Appeals erred in employing a definition of 'voluntary release' which is inconsistent with the
plain meaning of the Texas kidnapping statute and this Court's well-established jurisprudence."
2.  Among other things, she testified that she thought that the 50-year sentence was excessive and that she did
not leave when left alone with the car keys, not because she was afraid of appellant, but because she cared for him
and did not want to strand him in Henderson.
3.  While described by appellant and the court of appeals as "consensual," the record from the punishment
hearing indicates that the sexual conduct was, at best, coerced.
4.  The record is unclear, but it may be inferred that someone at Kilgore College reported the kidnapping.
5.  There is some evidence in the record that the complainant, while at appellant's home, spoke by telephone
with an officer from Kilgore College and told him that she was there against her will.
