January 30, 2015



Texas Court of Criminal Appeals

Butcher v. State

PD-1662-13                1/28/14


When a kidnapper returned his 9-year-old victim to the same place he kidnapped her from, during the day, and at a location she was allowed to walk to on her own, did those facts establish that he voluntarily returned her to a “safe place” and was therefore facing a second-degree felony rather than a first-degree?


No. The term “safe place” is ambiguous and must be proven to such a degree that no reasonable jury could find otherwise. That determination must be made on a case-by-case basis. Read the opinion.

Concurrence (Newell, J.):

The legislature intended to incentivize the safe release of victims with this statute, but that does not mean that the act of releasing the victim itself should automatically be applied to ease the punishment on defendants. Read the concurrence.

Dissent (Meyers, J.):

The “safe place” provision is not an affirmative defense. It is a mitigation issue. Read the dissent.

Dissent (Johnson, J.):

Because the term “safe place” is ambiguous, and because the defendant acted in the way which the legislature intended to incentivize, the court should have found the defendant had made out the defense. Read the dissent.


The Court seems too ready to declare a term “ambiguous” and then paw about for a meaning. The lower courts, however, seem to be doing just fine handling the term “safe place” and reviewing verdicts on the issue. The rule from this case seems to be that returning a kidnapping victim to the place they were kidnapped from does not automatically equal release in a safe place.

Kirk v. State



Is the trial court limited to a 75-day window in which to rescind an order granting a new trial?


No. The trial court can only grant a new trial within that 75-day window, but there is no similar time limit on the court’s authority to rescind the order. Read the opinion.

Concurrence (Alcala, J.):

The majority’s opinion should not be read to state that there is never a situation where a trial court may not rescind its order for a new trial. The decision to grant or rescind a new trial should be made cautiously, and it is an open question as to whether the order could be rescinded after jeopardy has attached at the retrial. Read the concurrence.


Granted motions for new trial are fairly uncommon. While the State can appeal such rulings, appeals can take a great deal of time, but then so do retrials. The concurrence indicates that once a State’s appeal is filed, the trial court cannot rescind an order granting a new trial, but that argument seems out of step with the Rule of Appellate Procedure it cites, which indicates that a trial court retains jurisdiction until the appellate record is filed. Another question this decision raises is what happens if the new trial is granted on the basis of insufficient evidence? May a trial court acquit a defendant, then turn around 90 days later and say, “Never mind, you’re guilty after all”?


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