Butcher, Charles E. Ii

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1662-13
CHARLES E. BUTCHER, II, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TRAVIS COUNTY
M EYERS, J., filed a dissenting opinion.
DISSENTING OPINION
The majority and concurring opinions both agree with the court of appeals that the
evidence in this case was legally and factually sufficient to reject the defendant’s claim that
he voluntarily released the victim in a safe place. The majority, however, has characterized
the safe place provision as an affirmative defense and analyzed it under the (likely incorrect)
standard discussed in Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013). The safe
place provision, however, even though the defendant has the burden to prove it, is not an
Butcher dissent - Page 2
affirmative defense; it is a mitigation issue. Therefore, the standard for analyzing affirmative
defenses should not be employed. The defendant had the burden to prove he voluntarily
released the victim in a safe place, and we should now be asking whether the defendant met
this burden. In answering this question, however, it is problematic to have the jury deciding,
from an objective standpoint, rather than from the defendant’s subjective view, whether the
place in which the victim was released was safe. Allowing a jury to decide after the fact
whether a kidnapper acted in line with the provision is incompatible with the spirit and
purpose of the statute, which is to encourage kidnappers to safely release their subjects.
Therefore, the charge to the jury on the safe place provision should have been based upon
whether the defendant perceived the place to be safe and whether that perception was rational
and justified. Today’s holding renders the provision useless, as this case seems to exemplify
precisely the circumstances to which this provision should apply.
Rather than using the laundry list of factors discussed in the majority’s opinion in
trying to determine whether a place is safe or not, we should be looking to whether the
defendant was attempting to comply with the statute. Because a kidnapper will obviously not
be aware of these factors, I do not believe that looking at them after-the-fact is a valid way
of analyzing this issue. Using this method means that even a defendant who made a good-
faith effort to safely return his victim may not be able to employ this defense. Irrespective
of whether a location is absolutely safe, if a defendant avoided what he would consider to be
unsafe places, this defense should apply. Appellant, for example, drove JG back to where he
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found her after she explained that she did not know how to get home from the first location
he released her. This demonstrates a clear intent to return the victim safely, and allowing a
jury to reject this defense undermines the Legislature’s intent in promulgating the provision.
Further, when a defendant returns their kidnapping victim to the precise place from
which the victim was taken, there should not have to be a determination at all as to whether
the location is safe or not, as long as the victim was voluntarily present in that place.
Regardless of whether a jury would determine the location to be safe, it is where the victim
chose to be (or in this case, where the victim’s parent chose for the child to be). In these
situations, the determination of whether the location is safe or not has already been made by
the victim, or the victim’s guardian, with no input from the defendant. If a woman is
kidnapped from her home where she lives with her violently abusive husband, would such
a defendant not be able to use this affirmative defense when he returns the woman to her own
home? I believe we should continue to encourage defendants to return their victims, rather
than discourage such an act with decisions such as the majority’s today.
Unless a variance is shown, such as the victim not voluntarily being in the place he
or she was taken from, I believe it is unreasonable for any factfinder to reject this mitigating
circumstance of safe release and that such a verdict is manifestly unjust. For the foregoing
reasons, I would reverse the decision of the court of appeals and, therefore, I respectfully
dissent.
Meyers, J.
Butcher dissent - Page 4
Filed: January 28, 2015
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