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Carreon v. State

The burden to demonstrate the "safe release" affirmative defense lies with a defendant under Texas Penal Code '20.04(d); an accused, in order to avail himself of the mitigating effect must have performed some overt and affirmative act that brings home to the victim that he/she has been fully released from captivity.

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OPINION

Agustin Fabio Carreon appeals the trial court’s judgment sentencing him to concurrent terms of fifty years on each of two counts of aggravated kidnapping, Tex. Pen. Code Ann. � 20.04 (Vernon Supp. 2001); thirty years on each of two counts of aggravated robbery, Tex. Pen. Code Ann. � 29.03 (Vernon 1994); and five years on one count of deadly conduct, Tex. Pen. Code Ann. � 22.05 (Vernon 1994). Carreon entered a plea of guilty, and the jury found him guilty as instructed.

No challenge is raised on appeal to the sufficiency of the evidence. Carreon, displaying a gun, abducted two women, Peggy McKee, age seventy-six, and her cousin, Mary Frances McKee, age eighty-three, on Christmas Eve 1999, from the Greyhound bus station in Dallas. He took one of the victims’ cars and drove the victims first around Dallas, and then on Interstate 45 toward Houston. During the drive, Carreon forced the women to give him money to buy beer and cigarettes, threatened to blow their heads off, and shot his gun out the window several times.

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