Keller, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ. joined.

The legal sufficiency question in this case is whether there was sufficient evidence to show an underlying offense that elevates the murder to capital murder. One underlying offense alleged in the indictment is attempted kidnapping.¹ As the Court explains, for there to be a kidnapping, there must be restraint,² which entails restricting “a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or confining the person.”³ “Attempt” occurs when, with the specific intent to commit a crime (e.g. kidnapping), the person “does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”⁴ It is no defense that a fact unknown to the defendant makes the crime impossible to complete.⁵ As in any other legal sufficiency review, we must view the evidence in the light most favorable to the verdict and determine whether any rational jury could have found the elements of the offense beyond a reasonable doubt.⁶

According to appellant’s father’s statement, after appellant shot Wayne, “[Appellant] leaned the gun against the truck and he grabbed a hold of Wayne’s arms and started to drag him off.” The Court contends that the State failed to show that appellant substantially interfered with Wayne’s liberty because he was unconscious when appellant attempted to move him to the bed of the pickup truck. But whether a victim is conscious or not should have no bearing on whether he is being kidnapped because the victim’s mental state is not an element of the offense. While appellant may not have succeeded in substantially interfering with Wayne’s liberty, a rational jury could have found that appellant attempted to do so. A rational jury could have found that appellant intended to drive away with Wayne in Wayne’s own truck and was stopped only because Bailey and Ray interfered. This conclusion is supported by the evidence that:

(1) appellant opened the tailgate of the victim’s truck,

(2) appellant grabbed Wayne under the arms and began dragging him to the back of the truck,

(3) when Bailey told appellant to stop, appellant pointed his fingers at him in the shape of a pistol and stated, “I’ve got something for you, too,”

(4) appellant relented after Ray told him to go home or Ray would kill him,⁷

(5) appellant later came back and dragged Wayne’s body with appellant’s four- wheeled vehicle.⁸

Driving away with Wayne’s unconscious body would have substantially interfered with his liberty by moving him a significant distance from where he intended to be and by depriving him of the potentially life-saving assistance of emergency medical personnel.

I respectfully dissent.

KELLER, Presiding Judge

Date filed: December 18, 2002
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¹ “A person commits an offense if he commits murder as defined under Section 19.02(b)(1) and...the person intentionally commits the murder in the course of committing or attempting to commit kidnapping.” TEX. PEN. CODE §19.03(a)(2)(emphasis added).
² TEX. PEN. CODE §20.03(a)(“abduct” is an element of kidnapping); §20.01(2)(“abduct” includes “restraint”).
³ TEX. PEN. CODE §20.01(1).
⁴ TEX. PEN. CODE §15.01(a).
⁵ Chen v. State, 42 S.W.3d 926, 930 (Tex. Crim. App. 2001).
⁶ Jackson v. Virginia, 443 U.S. 307 (1979).
⁷ This fact is not mentioned in the Court’s opinion. The testimony was as follows:

Q [PROSECUTOR]: Do you remember giving a written statement?

A [RAY]: I remember giving something.

Q: Read this portion right in here. (indicating)

A: About right here, the rifle, or whereabouts?

Q: Let me find it exactly. Start right there with, “I told Milton to leave him alone.” Just read it.

A: “I told Milton to leave him alone and then shut up or I would kill him. Milton took the rifle and got in the car and went to the house.”

Q: “Told Milton to leave him alone. Jimmy Bailey told Milton you done killed Wayne. Milton told Jimmy to shut up or he would kill him.” Right?

A: He could have very easily said that; or I could have said it too, yes.