                             COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-14-00399-CR


STEPHAN ANDREW COX                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE

                                     ------------

          FROM THE 396th DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1325641D

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                             CONCURRING OPINION

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       I do not disagree with the thorough and conscientious majority. I write

separately only to say that because the complainant was a child, there is really

very little to talk about.

Jurisdiction and Criminal Episode

       An offense may be prosecuted in Texas only if Texas has territorial
jurisdiction over the offense.1 This state has jurisdiction over an offense if “either

the conduct or a result that is an element of the offense occurs inside this state.”2

The Texas Court of Criminal Appeals has held that this statute applies to both

conduct and result.3

      State courts of Texas have jurisdiction over the prosecution for aggravated

sexual assault where the criminal episode forming the basis of charges began

within this state.4    The criminal episode began when Appellant began the

kidnapping with intent to commit sexual assault. Section 3.01 of the Penal Code

provides,

            In this chapter, “criminal episode” means the commission of
      two or more offenses, regardless of whether the harm is directed
      toward or inflicted upon more than one person or item of property,
      under the following circumstances:

            (1) the offenses are committed pursuant to the same
      transaction or pursuant to two or more transactions that are
      connected or constitute a common scheme or plan; or

             (2) the offenses are the repeated commission of the same or
      similar offenses.5

      1
      See Tex. Penal Code Ann. § 1.04(a) (West 2011); Torres v. State, 141
S.W.3d 645, 654 (Tex. App.—El Paso 2004, pet. ref’d).
      2
       Tex. Penal Code Ann. § 1.04(a)(1).
      3
       Rodriguez v. State, 146 S.W.3d 674, 675–76 (Tex. Crim. App. 2004).
      4
        Yates v. State, 370 S.W.3d 772, 774–75 (Tex. App.—Texarkana 2012,
pet. ref’d).
      5
       Tex. Penal Code Ann. § 3.01 (West 2011); see Diaz v. State, 125 S.W.3d
739, 742 (Tex. App.—Houston [1st Dist.] 2003, pets. ref’d).


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      We learn from the record that the first sexual assault of which the jury

convicted Appellant occurred on the bus during the trip to Mexico. To prove

kidnapping with intent to commit sexual assault, it was not necessary that the

State prove any actual sexual assault, so long as there was evidence of the

intent to commit sexual assault.6 The criminal episode under the circumstances

of this case included the sexual assaults and ended only with the final release or

escape of the complainant from Appellant’s control.7 The criminal episode began

in Texas and concluded in Mexico.8

Aggravated Kidnapping

      The trial court charged the jury that

            “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.

             Restraint is “without consent” if the victim is a child who is 14
      years of age or older and younger than 17 years of age, the victim is
      taken outside of the state and outside a 120 mile radius from the
      victim’s residence, and the parent, guardian, or person or institution
      acting in loco parentis has not acquiesced in the movement.

      The record shows that Appellant moved the complainant, a fourteen-year-

old child, from her middle school to Mexico, a location more than 120 miles from

her radius and outside the state of Texas, without her parents’ consent or

      6
       See Tex. Penal Code Ann. § 20.04(a)(4) (West 2011).
      7
        See Burns v. State, 728 S.W.2d 114, 116 (Tex. App.—Houston [14th
Dist.] 1987, pet. ref’d).
      8
       Id.; see Tex. Penal Code Ann. § 3.01.


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acquiescence and without their knowledge, taking steps to prevent the parents

from finding Appellant and the complainant. Nothing more is required to prove

kidnapping under the facts of this case.9 Consent is no defense.10

      Because the complainant was fourteen years old and Appellant was more

than seventeen years old, her mental state and conduct were not relevant. 11

Thus, because she was fourteen years of age when Appellant took her to Mexico

without her parents’ consent for the purpose of sexually abusing her or sexually

assaulting her, he committed aggravated kidnapping.12         The evidence was

sufficient to support Appellant’s convictions.

Conclusion

      Based on the statutes as the legislature has drafted them, these are the

only relevant issues.



      9
       See Tex. Penal Code Ann. § 20.03(a) (West 2011), § 20.04(a)(4).
      10
          See id. § 20.01(1)(B)(ii).
      11
         Smallwood v. State, 471 S.W.3d 601, 607 (Tex. App.—Fort Worth 2016,
pet. ref’d) (op. on reh’g) (citing In re B.W., 313 S.W.3d 818, 823–24 (Tex. 2010));
see Fleming v. State, 455 S.W.3d 577, 581–82 (Tex. Crim. App. 2014) (“[S]exual
intercourse is not a crime except in certain circumstances, such as . . . when the
other person is deemed unable to consent due to his or her age.” Further, “[t]he
statutory prohibition of an adult having sex with a person who is under the age of
consent serves to protect young people from being coerced by the power of an
older, more mature person.” Finally, “[w]hen it comes to protecting those who
are unable, due to their tender age, to consent to sexual activity, the legislature
simply does not allow any variance.”), cert. denied, 135 S. Ct. 1159 (2015).
      12
          See Tex. Penal Code Ann. § 20.04(a)(4).


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                              /s/ Lee Ann Dauphinot
                              LEE ANN DAUPHINOT
                              JUSTICE

PUBLISH

DELIVERED: May 12, 2016




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