I know when you plead agg. kidnapping, you have to include the particular manner and means of "abduction" in the indictment. (Gibbons v. State, 652 SW2d 413). Which I assume means that you have to include:

"to restrain a person with intent to prevent his liberation by:
"(A) secreting or holding him in a place where he is not likely to be found; or
"(B) using or threatening the use of deadly force."

But, my question is... can I include both manner and means in the indictment?

The Gibbons case said:

"Where an indictment contains a necessary allegation of an act by the accused which comprises more than one statutorily defined means of its performance, as here with the allegation of abduction, but the indictment fails to specify which of the statutory definitions of the act is relied upon, the indictment is subject to a motion to quash. Coleman v. State, 643 S.W.2d 124 (Tex.Cr.App.1982); Gorman v. State, 634 S.W.2d 681 (Tex.Cr.App.1982)."

So does that case mean:
(1) I can't just say "abduction" I have to be more specific (but it is OK to use both manners and means in the alternative)

OR

(2) I must elect between the two manner and means in PC 20.01(2)?

Thanks...

I think if the indictment just says abducted or abducting that it would be subject to a motion to quash.

OTOH, you can allege any theory of abduction that you believe you can prove.

See Hartis v. State, 183 S.W.3d 793, 800 (Tex.App. - Houston [14th Dist.] 2005, no pet.) ("If a statute sets out several ways for committing an offense, and those ways embrace the same definition, are punishable in same manner, and are not repugnant to each other, the State need not elect between various theories alleged; rather, the jury may consider all of the theories and return a general verdict of guilty.")(citing e.g., State v. Garrett, 798 S.W.2d 311 (Tex.App.-Houston [1st Dist.] 1990, aff'd, 824 S.W.2d 181 (Tex. Crim. App. 1992) (en banc)) (holding an indictment for delivery of controlled substance that alleged the delivery was by actual transfer, by constructive transfer, or by offer to sell, provided sufficient notice to defendant that he should prepare to defend prosecution on all three theories of delivery).

Morris v. State, 89 S.W.3d 146, 149 (Tex.App. - Corpus Christi 2002, no pet.).


I actually had an appeal on this issue about 12 years ago. In an unpublished opinion (in a case called Gallagher, I think) the denial of the motion to quash was affirmed.