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Click here for the full text of this decision FACTS:Ellsworth Swaindell Storr, wearing a mask, demanded a college student’s wallet at gunpoint in a post office, and then ordered the student to walk back to the car he had left running. Storr’s companion, also wearing a mask, was in the driver’s seat. The pair drove the victim to an isolated area and threatened to kill him, but then put him in the trunk when another car approached. Though a police officer stopped the car for a traffic violation, the victim stayed quiet in the trunk because Storr and his companion told him they’d kill him. Later, the two let the victim out of the trunk. They took off their masks and ordered the victim to drive them back to the post office, where the exited the car and walked away. They took $20 from the victim’s wallet, but left him his shoes, which they had earlier told him to remove. The victim drove to his dorm and told his roommate, who did nothing. The victim did not tell anyone else that night what happened because he saw Storr and his companion on a bench outside his dorm room. The victim told his mother and the police the following day. A jury convicted Storr of aggravated kidnapping. At the punishment phase, Storr was fined $10,000 and assessed a 35-year prison term. On appeal, Storr claims his trial counsel was ineffective at the punishment phase because he did not ask for a jury instruction on voluntary release in a safe place, under Penal Code �20.04. HOLDING:Affirmed in part; reversed and remanded in part. Subsection (d) of �20.04 is a punishment mitigation provision that allows a kidnapping charge to be reduced from a first-degree felony to a second-degree felony if the defendant raises and then proves by a preponderance of the evidence that he voluntarily released the victim in a safe place. A second-degree felony is punishable by a term of between two and 20 years. Also, if the conviction is for a second-degree felony, the punishment term is 10 years or less, and the defendants has no prior felony convictions, a jury can recommend community supervision in lieu of the prison term. The court applies the familiar standard for ineffective assistance of counsel claims found in Strickland v. Washington, 466 U.S. 668 (1984), which states that the defendant must show that his attorney’s representation fell below an objective standard of reasonableness, and the result of the proceeding would have different but for the attorney’s deficient performance. The court notes that while trial counsel strategy is usually not second-guessed on appeal, even the Court of Criminal Appeals has recognized that some errors are so egregious or outrageous that they cannot be the product of any reasonable trial strategy. The court further notes that, in most appellate court cases in Texas that have considered ineffective assistance claims for failure to secure a jury instruction on punishment mitigation, the courts found no evidence of safe release. The court finds this case is unique because the evidence conclusively establishes that Storr voluntarily released the victim in a safe place. The determination of “safe place” includes consideration of factors such as: 1. remoteness of the location; 2. proximity of authorities or persons who could aid or assist; 3. the time of day; 4. climatic conditions; 5. condition of the victim; 6. character of the location or surrounding neighborhood; and 7. the victim’s familiarity with the location or surrounding neighborhood. Here, the victim was left in his car near the university, at the exact spot he originally parked and was abducted; Storr was not coerced by a police officer to release the victim, and when the victim was released, there was no chance of him getting caught in police cross-fire; the area was safe, and he was not forced from a moving car; he was not injured, but if he was, he was in an area where assistance was easily available; he drove to his dorm, but didn’t report the incident to the police or his family until the next day. “Because of the significant difference in punishment, it is inconceivable that appellant’s counsel would have had some trial strategy for not requesting an instruction on safe release. . . . This case is a rare instance when there is no trial strategy that can explain the failure of appellant’s trial counsel to request a safe release instruction.” The court says this is not a case where the attorney chose not to urge a defense, but one simply recognizing that a defense has been raised by the evidence. Though at trial Storr’s attorney raised a misidentification defense, in reality, the only mitigating defense raised by the evidence was voluntary release of the victim in a safe place. The court finds that Storr was clearly prejudiced because he received a punishment of 15 years more than the maximum allowable range for a second-degree felony. The court also reforms the judgment, which incorrectly states that Storr pleaded “guilty” to the indictment. OPINION:Yates, J.; Yates, Hudson, and Frost, JJ. Frost, J., dissenting.

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