COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00399-CR

STEPHAN ANDREW COX APPELLANT

V.

THE STATE OF TEXAS STATE

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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 
2

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

 

1See 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).

2Tex. Penal Code Ann. § 1.04(a)(1).

3Rodriguez v. State, 146 S.W.3d 674, 675–76 (Tex. Crim. App. 2004).

4Yates v. State, 370 S.W.3d 772, 774–75 (Tex. App.—Texarkana 2012, 

pet. ref’d).

5Tex. 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).
3

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-yearold 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 

 

6See Tex. Penal Code Ann. § 20.04(a)(4) (West 2011).

7See 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. 

 

9See Tex. Penal Code Ann. § 20.03(a) (West 2011), § 20.04(a)(4).

10See id. § 20.01(1)(B)(ii). 

11Smallwood 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).

12See 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