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163 Cards in this Set
- Front
- Back
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What are the limits on the Death Penalty?
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It is unconst w/ the 8th to execute people under 18 and the mentally insane
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Does Texas have any mitigating or aggravating factors in regards to capital murder?
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No there are none
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Is proportionality required by the 8th?
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No, proportionality is not constitutionally required; thus dis-proportionality is does not automatically overturn a conviction/
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Definiteness in statutory language
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Must give a person of ordinary intellegence adequate notice that the conduct is illegal.
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Legal standard
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Person must be found guilty BEYOND A REASONABLE DOUBT for EACH ELEMENT OF THE CRIME. and he is presumed innocent until this happens.
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Affirmative Defense and its burden
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Burden on proving those is on the Defendant. they- insanity, dress, and mistake of law; the defendant must prove these only by a preponderance of the evidence
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Culpable mental states
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Intentional, knowingly, recklessly, and criminal negligence
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How do they work?
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One of the mental states is prescribed unless it is expressly provided that it is not required. If none is given then some culpable mental state is req. unless the statute plainly dispenses all of them. When there is no mental state prescribed then it must be Intentionally, knowingly, recklessly.
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What happens if the Prosecution proves a higher culpable mental state?
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The serves as proving the mental state charged since it is a sliding scale.
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Intentional
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With respect to the nature of his conduct or to a result of his conduct when it is his CONSCIOUS OBJECTIVE OR DESIRE to engage in the conduct or cause the result
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Knowing
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with respect to his conduct or circumstances surrounding his conduct when he IS AWARE OF THE NATURE OF HIS CONDUCT OR THAT THE CIRCUMSTANCES EXIST with respect to a result of his conduct when HE IS AWARE THAT HIS CONDUCT IS REASONABLY CERTAIN TO CAUSE THE RESULT
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Reckless
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he IS AWARE OF BUT CONSCIOUSLY DISREGARDS A SUBSTANTIAL AND UNJUSTIFIABLE RISK that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregards constitutes a GROSS DEVIATION FROM THE STANDARD OF CARE THAT AN ORDINARY PERSON WOULD EXERCISE under all the circ. as viewed from the ACTORS STANDPOINT.
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Criminal Negligence
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he OUGHT TO BE AWARE OF A SUBSTANTIAL AND UNJUSTIFIABLE RISK that the circumstances exist or the result will occur; The risk must be of SUCH A NATURE AND DEGREE that the FAILURE TO PERCEIVE IT CONSTITUTES A GROSS DEVIATION FROM THE STANDARD OF CARE THAT AN ORDINARY PERSON would exercise under all of the circumstances as VIEWED FROM THE ACTORS STANDPOINT
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Intoxication and Mens Rea (culpable mental state)
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Voluntary intoxication is NOT a defense in Texas
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Criminal episode
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Criminal Episode means the commission of 2 OR MORE OFFENSES, REGARDLESS OF WHETHER THE HARM IS DIRECTED TOWARDS OR INFLICTED UPON MORE THAN ONE PERSON PR ITEM OF PROPERTY, under the following circumstance: 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; 2) The offenses are REPEATED commission of the same or similar offenses
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What does a criminal episode mean?
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A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.
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Sentencing for the same criminal episode?
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Sentences shall be announced individually for all crimes within the same Criminal Episode; but they shall run concurrently unless expressly provided for.
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Act Requirement
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Crimes require a voluntary physical act or conduct by D as defined by a statute (e.g. act, omission, or possession); ACT MUST BE VOLUNTARY (exception: voluntary act preceding involuntary act (like driving with epilepsy: voluntary choice=driving care); We do not punish things that are bad thoughts or statuses such as addiction.
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Possession as a voluntary act
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Possession is a voluntary act if the possessor knowingly OBTAINS OR RECEIVES the thing possessed or is AWARE OF HIS CONTROL OF THE THING FOR A SUFFICIENT TIME TO PERMIT HIM TO TERMINATE HIS CONTROL
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Failure to act
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must have a duty to perform an act to be held liable for failing to do so; Bystander rule: (generally do not have a duty to act if you see someone in peril)
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Omission in the failure to act context
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A person who omits to perform an act does not omit an offense unless a law as defined by 1/07 provides that the omission is an offense or otherwise provides that he has a DUTY TO PERFORM
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Drunk Driving
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A person commits an offense if the person is intoxicated while OPERATING a motor vehicle in a PUBLIC PLACE; its not DRIVING; and it can be in a PRIVATE PLACE
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Theft
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A lot of states have multiple "theft" offense, but since Texas is the best state we have consolidated all of those offense under one offense of Theft
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Key Elements
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1) Appropriation; 2) Property of Another; 3) Intent to Deprive (Welch Case- Tex. uses circumstantial evidence to determine intent); 4) Lack of Effective Consent
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What covered under theft
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Theft; theft by false pretext; conversino by a bailee; theft from the person; shoplifting; acquisition of property by threat; swindling; swindling by worthless check; embezzlement; extortion; receiving or concealing embezzled property; receiving or concealing stolen property
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What does a person have to do in order to commit theft?
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if the person UNLAWFULLY APPROPRIATES property with the INTENT TO DEPRIVE THE OWNER****** MUST HAVE INTENT TO DEPRIVE (remember the budwieser truck case)
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What counts as appropriation?
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Appropriation is unlawful if : a) it is w/o the owners effective consent; b) the property is stolen and the actor appropriates the PROPERTY KNOWING IT WAS STOLE BY ANOTHER; c) if they get tricked by the cops into thinking that it was stolen and then the actor appropriates it thinking that it is stolen
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intent to Deprive
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A) to withhold property form the owner PERMANENTLY OR for so EXTENDED A PERIOD OF TIME THAT A MAJOR PORTION OF THE VALUE OF THE PROPERTY IS LOST TO THE OWNER; B) or to RESTORE property only upon REWARDS; C) or to DISPOSE of property in a manner that makes recovery of the property by the owner UNLIKELY
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Consent when stealing shit
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Effective consent can come from a person legally authorized to act for the owner or the person himself
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when consent is not effective
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a) induced by deception or coercion; b) given by a person the actor knows is not legally authorized to act for the owner; c) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property disposition; d) given solely to detect the commission of an offense; OR e) given by a person who by reason of advanced age is know by the actor to have diminished capacity to make informed and rational decisions about reasonable disposition of property.
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Appropriate means:
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To bring about a transfer or purported transfer of title to or other non-possessory interest in property, whether to the actor or another; or b) to acquire or otherwise exercise control over property OTHER THAN REAL PROPERTY
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Property means:
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a) Real property; b) tangible or intangible personal property including anything severed from land; c) or a document, including money, that represents or embodies anything of value
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Budweiser truck
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Could not get him for theft of the vehicle because he had no intent to deprive for the truck and he left the truck in a conspicious place (so he didnt satisfy the disposing of it in a place where it is unlikley to be found) so he got k unauthorized use of a car; but they did get him for theft of the beer because he did have intent to deprive there
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Criminal mischief
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A person commits an offense if without the effective consent of the owner: a) he intentionally or knowingly damages or destroys the tangible property of the owners; b) he INTENTIONALLY OR KNOWINGLY tampers with the tangible property of the owner and CASUES PECUNIARY LSOS OR SUBSTANTIAL INCONVENIENCE TO THE OWNER OR A THIRD PARTY; or c) he INTENTIONALLY OR KNOWINGLY makes markings including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner
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What are the aggravated property offenses
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Robbery; Aggravated Robbery; burglary; Arson
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Robbery
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IN THE COURSE OF COMMITTING THEFT as defined in chp. 31, and with INTENT to OBTAIN OR MAINTAIN CONTROL of the property he: 1) INTENTIONALLY KNOWINGLY OR RECKLESS (CRIM. NEG. DOESN'T COUNT) causes bodily injury to another; or 2) INTENTIONALLY or KNOWINGLY threatens or places another in fear or imminent bodily injury or death
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What does the in the course of committing theft mean?
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Conduct that occurs in an ATTEMPT to commit, DURING THE COMMISSION, or in IMMEDIATE FLIGHT AFTER THE ATTEMPT OR COMMISSION of theft
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Aggravated robbery and how is it different from basic robbery?
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commits robbery as defined by 29.02 and: 1) causes SERIOUS bodily injury to another; 2) Uses or EXHIBITS A DEADLY WEAPON; or 2) CAUSES BODILY INJURY to another person or THREATENS OR PLACES ANOTHER IN FEAR OF IMMINENT BODILY INJURY OR DEATH, if the the person being threatened is : a) 65 or older; b) a disabled person
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Burglary?
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Without effective consent of the owner, the person: 1) ENTERS a habitation, or a building (or any portion of a building) not then OPEN TO THE PUBLIC, WITH INTENT to commit a FELONY, THEFT, or an ASSAULT; or 2) REMAINS CONCEALED with intent to commit a felony, theft, or an assault, in a building or habitation; or 3) enters a habitation or building and commits or attempts to commit a felony, theft or an assault
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What does enter mean in this context?
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Enter means to intrude: 1) any part of the body; or 2) any physical object connected with the body
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Arson?
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if the person STARTS A FIRE, REGARDLESS OF WHETHER THE FIRE CONTINUES AFTER IGNITION, or CASUE AN EXPLOSION, WITH INTENT TO DESTROY OR DAMAGE: a) any vegetation, fence, or structure on open space land, OR 2) any building, habitation or vehicle a) KNOWING that it is within the limits of an incorporated city or town; b) KNOWING that it is insured against damage or destruction; c) KNOWING that it is subject to a mortgage or other security interest; d) KNOWING that it is located on property belonging to another; e) KNOWING that it has located within it property belonging to another; or when the person is reckless about whether the burning or explosion will endanger the life of some individual or the saftey of the property of another.
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Assault?
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if the person: INTENTIONALLY, KNOWINGLY, or RECKLESSLY CAUSES BODILY INJURY TO ANOTHER, including the person's spouse; 2) INTENTIONALLY or KNOWINGLY THREATENS ANOTHER WITH IMMINENT BODILY INJURY, including the person's spouse; or 3) INTENTIONALLY or KNOWINGLY CAUSES PHYSICAL CONTACT with another when the PERSON KNOWS OR SHOULD REASONABLY BELIEVE that the other will regard the contact as OFFENSIVE OR PROACTIVE
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Aggravated assault
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"assault plus" -- if the person commits assault and: Causes SERIOUS BODILY INJURY to another, including the person's spouse; or USES OF EXHIBITS A DEADLY WEAPON during the commission of the assault
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What is a deadly weapon?
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a) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; OR 2) anything that in the manner of its uses or intended use is capable of causing death or serious bodily injury.
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What does serious bodily injury mean?
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bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement , or protracted loss or impairment of the function of any bodily member or organ
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Act requirement: Kidnapping
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In Tex. there is no per se rule which prohibits charging kidnapping along with robbery, rape, or another offense, where D "abducts" a person
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Kidnapping
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If he INTENTIONALLY or KNOWINGLY ABDUCTS another person.
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Affirmative Defenses for Kidnapping
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1) the abduction was not coupled with intent to use or to threaten to use deadly force; 2) the actor was a relative or the person; 3) the actor's sole intent was to assume lawful control of the victim
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what does abduct mean?
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abduct means 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 to use deadly force
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what does restrain?
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restrict a person's movement WITHOUT CONSENT, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person
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What does person mean?
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means an individual, corporation, or association?
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Aggravated kidnapping?
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if he INTENTIONALLY or KNOWINGLY abducts another person with the intent to: 1) hold him for a ransom or reward; 2) use him as a shield or hostage; 3) facilitate the commission of a felony or the felony or the flight after the attempt or commission of a felony; 4) inflict bodily injury on him or violate or abuse him sexually; 5) terrorize him or a third person; or 6) interfere with the performance of any governmental or political function
B) a person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense |
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Affirmative defenses to Aggravated Kidnapping at the punishment stage
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at punishment the D may raise the issues as to whether he voluntarily released the victim in a safe place. if the D proves the issue in the affirmative by a P.O.T.E, the offense is a 2d felony.
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State of Mind Specific
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Specific Intent: statutory proscribed precise intent which is required for conviction --- basically there is a specifically proscribed culpable mental state
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state of mind general
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All others, when there is not a specific intent proscribed, only need intent to engage in some prohibited conduct
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State of mind: penalty matters
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Generally, DO NOT, require that a D intend to steal a specific amount of property or possess/sell a specific amount of drugs
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Strict Liability
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an offense that doe snot require proof of a culpable mental state. Public policy interest, and usually carry light punishments
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What happens when no CMS is proscribed but one is required?
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If no mental state is proscribed and one is nevertheless required under (b), the INTENT KNOWLEDGE OR RECKLESSNESS suffices
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Mistake of fact
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honest mistakes of can negate criminal intent; a) it is a DEFENSE to prosecution that the actor through mistake formed a REASONABLE belief about a matter of fact IF his mistake belief NEGATED THE KIND OF CULPABILITY REQUIRED FOR COMMISSION OF THE OFFENSE; b) although an actor's mistake of fact may constitute a defense to the offense charged, he MAY NEVERTHELESS BE CONVICTED OF ANY LESSER INCLUDED OFFENSE of which he would be guilty if the fact were as he believed
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Mistake of Law
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It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken affect; b) it is an affirmative defense to prosecution that the actor reasonably believed that the conduct charged did not constitute a crime and that he ACTED IN REASONABLE RELIANCE UPON: 1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; 2) a opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question
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Mistake of law cont'd
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just like mistake of fact even though the actor mistake of law may constitute a defense he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed
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other disproof defenses
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Claim of right: not specifically accounted for in TPC but probably by MoF or MoL.
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other disproof defense cont'd- intoxication
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Intoxication- Voluntary Intoxication is not a defense in Tex. (involuntary yes); Intoxication can be used in sentencing stage of trial as mitigation (or aggravating factor)- after conviction
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Voluntary intoxication
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Not a defense; can only be used at sentencing stage of trial as a mitigating factor
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involuntary intoxication
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can be a defense; intoxication is involuntary when a defendant was unaware that a substance he or she was ingesting was intoxicating, or when he or she was compelled by others to ingest the substance even if they knew it was intoxicating
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Homicide
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Homicide encompasses all criminal killings
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when does death occur
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brian dead
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Liability of Death? 2 theories
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Year and a day rule (common law;death could not be legally attributed to acts or omissions that occurred more than a year and a day before the death.); causation (modern; and what we follow)
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What is criminal homicide?
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A person commits criminal homicide if he INTENTIONALLY, KNOWINGLY, RECKLESSLY, or with, CRIMINAL NEGLIGENCE causes the death of an individual; Remember all 4 culpable mental state
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What are the types of criminal homicide?
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Murder, Capital Murder, Manslaughter, Crim. Neg. Homicide
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Murder?
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1) INTENTIONALLY or KNOWINGLY causes the death of an individual; 2) intends to cause SERIOUS BODILY INJURY and COMMITS AND ACT CLEARLY DANGEROUS TO HUMAN LIFE THAT CAUSES THE DEATH OF AN INDIVIDUAL; or 3) commits or attempts a FELONY, OTHER THAN MANSLAUGHTER, and in the course of and in the furtherance of teh commission or ATTEMPT, he commits or ATTEMPTS to commit an ACT CLEARLY DANGEROUS TO HUMAN LIFE THAT CAUSES THE DEATH OF AN INDIVIDUAL
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Voluntary Manslaughter?
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No longer in an offense Texas. Dealth with at punishment stage of a murder trial.
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What can indicate that it was voluntary manslaughter?
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1) immediate influence; 2) sudden passion; 3) (arising from an) adequate cause --- a)must prove by affirmative by P.O.T.E; b) 2nd degree felony
"extreme emotional disturbance"--- person |
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what type of offense is murder?
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1st degree felony
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does tex. have a manslaughter offense?
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yes, it is a murder casued by recklessness
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what happens at the punishment stage of trial if the person provement that the death resulted from a "sudden passion" arising from an adequate cause" BY P.O.T.E?
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it becomes manslaughter and is reduced to a 2nd degree felony
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what does adequate cause?
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means cause that would commonly produce a degree of anger, rage, resentment, or terror in a perosn of ordinary temper, sufficient to render the mind incapable of cool reflection
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what does sudden passion mean?
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means passion DIRECTLY CAUSED by and ARISING OUT OF PROVOCATION BY THE INDIVIDUAL KILLED OR ANOTHER ACTING WITH THE PERSON KILLED which passion arises at the time of the offense and is not solely the result of former provocation.
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Capitol Murder?
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commits regual murder and : kills a PEACE OFFICER; or 2) person INTENTIONALLY commits the mruder in the coruse of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction, or retaliation, or terroristic threat (FELONIES)(FELONIES) it is deemed to be intentional but it must be a different felony than the one that actaully kills the person (predicate felony)
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capitol murder cont'd
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or 3) person commits the murder for remuneration or the promise of remuneration or employs another to commit to the murder for renumeration (vengeance); 4) the person commits the murder while ESCAPING a penal instituion 5) attempting to escape from a penal institution murders another who: a) who is EMPLOYED in the operation of the place; or b) with the intent to establish, maintain, or participate in a COMBINATION or in the profits of a comination
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capitol murder cont'd (2)
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while INCARCERATED again: a) while incarcerated for murder kills in jail; b) while serving a sentence of life imprisonment or 99 YEARS; 7) kills MORE THAN ONE PERSON: a) during the SAME CRIMINAL TRANSACTION; or b) during different criminal transactions but the murders are COMMITTED PURSUANT TO THE SAME SCHEME OR COURSE OF CONDUCT
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cap. murder cont'd (3)
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8) kills someone under 6; 9) the person murders another person in RETALIATION for or on account of the service or status of the other person as a JUDGE or JUSTICE (of a shit ton of courts)
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capital murder notes
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intentional or knowing killing 1-9 catagories
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Manslaughter
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a) A person commits an offense if he RECKLESSLY causes the death of an individual
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Intoxicated Manslaughter?
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1) operates a motor vehicle in a PUBLIC PLACE, operates an AIRCRAFT, a WATERCRAFT, or an AMUSEMENT RIDE or assembles a small amusement park ride; and 2) is INTOXICATED and BY REASON OF THAT INTOXICATION causes the death of another by ACCIDENT or MISTAKE
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Criminal Negligent Homicide?
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if he causes the death of an individual by CRIMINAL NEGLIGENCE
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Felony Murder?
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Only in the Model Penal code- in FELONY MURDER we have a killing that the D DID NOT INTEND, but which took place during the course of attempting the felony, or while committing it, or in immediate flight from it.
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chicago v. morales
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gang statute; vagueness; overbreadth... only had to have a one gang member or the cops had to believe that one person was affiliated with a gang and they could arrest everyone
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can you attempt, solicit, or conspire an attempt?
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no you cannot you can not solicit an attempt
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what do you need then for an attempt?
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A person commits an
offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended |
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what is the line between attempt and preparation?
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we do not want to punish thoughts (preparation) but we do want to punish attempts (taking steps in preparation of doing the crime)
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renunciation as a defense
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15.03 affirmative defense for the actor to countermand or withdrew from the offense and took FURTHER ACTION THAT PREVENTED THE OFFENSE FROM HAPPENING
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can conspiracy be a misdemeanor
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No the perosn must INTEND TO CONSPIRE TO COMMIT A FELONY 1) talking to one or more perosns to do the crime and 2) one or mroe of them make an overt act in preperation to accomplish the offense
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causation and criminal responsibility
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a person is criminally responsible if the result WOULD NOT HAVE OCCURRED BUT FOR HIS CONDUCT, operating either alone of concurrently with another cause, UNLESS the concurrent cause was CLEARLY SUFFICIENT to produce the result AND the conduct of the actor CLEARLY INSUFFICIENT
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Malpractice special not
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gross negligence can count as a superseding cause but not regular negligence since it is foreseeable.
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What is the rape shield law
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cant use evidence of victims character, reputation, ect. Also you cant use evidence of victims past sexual behavior UNLESS: rebut or explain medical evidence; reflects past sexual behavior of D on the issue of consent to behavior involved or its probative value outweighs the danger of unfair prejudice
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if admissible, how do you present evidence of past sex behavior
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it must be presented IN CAMERA hearing to determine if it is admissible
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Sex offenses and consent
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must be w/o consent. Always relative to an adult, minors cant consent, mistake of fact (mistake to their age) is NOT A DEFENSE.
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what can get you out of it
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spousal exceptions DO NOT COUNT. But consent CAN GET YOU OUT OF IT
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consent in proving the crime
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consent is an element of the offense
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R kelly rule and age of consent
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17 in Tex. Doesnt matter if you believed they were not
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Culpable mental states for sexual assaults
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Intentionally and knowingly
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what counts as a sexual assault?
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basically penetration caused by you by you, someone else, or pretty much anything else.
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kids and what counts as sexual assault
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causing penetration of mount, anus, or sex organ, or causing the anus to contact the mount, anus, or sex organ of another, or causing mouth to tocuh ass, sex organ, mouth of another
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acts requirement
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compels participation by PHYSICAL FORCE, THREATENING use of physical force OR the other person has not consented and knows the person is UNCONSCIOUS OR PHYSICALLY UNABLE TO RESIST.
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what else can get you for sex assault
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using their mental disease or defect. the person has not consented and the actor know the other person is UNAWARE THAT THE SEXUAL ASSAULT IS OCCURRING: because the actor has INTENTIONALLY IMPAIRED the other person's power or the other person THREATENS to use force
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statutory rape exceptions
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D must be within 3 years of victim older than 14. only for victims of 14-16 years of age, cant be persons prohibited from marrying (relating---incest) ------ if you satisfy any of these then you get out of it.
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aggravated sexual assault
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intentionally and knowingly commits sexual assault and if this person a)causes serious bodily injury or attempts to cause the death of the victim or another in the course of the same criminal episode; 2) by acts or words places the vicitm in FEAR that death, serious bodily injury, or kidnapping will be IMMINENTLY inflicted on any person
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aggravated sex assault cont'd
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3) threatens the same shit to ANY person; 4) uses or exhibits a deadly weapon in the course of the same criminal act; 5) is an accomplice to someone that does subsection 1 (causes serious bodily injury or attempts to cause death); 6) administers or provides (roofy/date rape drug) to the victim with the intent of facilitating the commission of the offense.
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what is the level of offense for aggravated sexual assault
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1st degree felony
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inchoate (preparatory crimes)
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inent + some coduct (steps) toward the commission of the target offense
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how does this affect the punishment
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it decreases the level from the target crime. so attempted assault is one lower than assault
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can you combine inchoate crimes
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NO you cannot attempt to solicit, or conspire to attempt (this will be on the test, promise)
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what are the inchoate crimes
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Attempt (misdemenors, can do by yourself); Solicitation (capital felonys and 1st degree fel., must involve more than one person); conspiracy (in order of how many people you need)
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What is weird about inchoate (attempting to commit?)
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You cannot attempt or conspire to commit. So you cant attempt to solicit someone--- NOT A CRIME; MUST KNOW
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What do you need for attempt?
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more than thoughts. Must actually take steps towards the comission of the target offense. More than mere preparation. CANNOT ATTEMPT A STRICT LIABILITY CRIME. Distinguished from solicitation and conspiracy- 1 person can commit criminal attempt. Can attempt a MISDEMEANOR
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Can you have aggravated attempt?
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Yes if the person uses an aggravating factor (using a weapon) then yes.
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Defenses to attempt?
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No defense that the target crime was actually committed.
Renunciation- Impossiblity- Remeber the legal vs. Factual impossiblity distincion. Legal can negate the attempt (criminal state of mind, but actual act is not against the law) and factual- no defense ( D attempts to commit crime buy some factual thing not known to D prevents him from carrying out (would have carried out if possible) |
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Criminal Solicitation
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only for capital felony or felony in 1st degree. Must involve more than 1 person. D CANNOT be convicted on the uncorroborated testimony of the person that he solicited, but can be corroborated by anything really though.
Tries to get another perosn to engage in SPECIFIC CONDUCT that, VIEWED FROM THE ACTORS STANDPOINT, would consitute the felony or make the other a party to its commission. |
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Defenses to solicitation
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NO DEFENSE: 1) person solicited is not criminally responsible for the felony solicited. The person solicited has been acquitted; 3) the actor belongs to a class of persons LEGALLY INCAPABLE of committing the offense in an individual capacity. 4) the felony was ACTUALLY COMMITTED
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Criminal Conspiracy*
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Can be any felony, must have at least 2 co-conspirators, and must have an over act, may be inferred from the acts of the parties;
Bil-lateral Concept: must have a meeting of the minds btw at least 2 people to carry it out (this helps criminals when cops try to get them cause the cop never met the mind of the con. Rule of Consistency: must have at least 2 people (D and at least one other) to prosecute D for consp. Mere knowledge that the crime is being committed or mere presence is not SUFFICIENT to get consp. |
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Conspiracy definition*
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if with the intent that a felony be committed: 1) he agrees with one or more person that they or one or more of them engage in conduct that would constitute the offense; AND 2) he or one or more of them performs an overt act in pursuance of the agreement
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Conspiracy Defenses
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No defense that one or more of the co-conspriators 1) is not criminally resp. for the object offense; 2) has been acquitted, so long as two or more conspirators have not been acquitted; 3) one or more of the co-cons has not been prosecuted, or is immune from prosecution; 4) legally incapable; 5) the offense was actually committed
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Pinkerton Rule*
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Very Important- all co-conspirators are liable for the acts of all of ther co-con's when committed IN FURTHERANCE OF THE CONSP.; no knowledge req. (this means if you plan to rob a bank with guys and one guy goes to steal guns for it an kills someone you are liable for murder)
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Wharton's Rule
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when target offense is defined so that it can ONLY be committed by 2 people, can be no conspiracy to comitt. But if there are 3 people then you can get them.
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Withdrawl
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D is not liable for subsequent offense of the conspiracy AFTER he withdraws.
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Renunciation
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Applies to all 3 inchoate crimes all require a VOLUNTARY and complete renunciation. It is an affirmative defense. Most importantly they must avoid commission of the offense by abandoning his criminal conduct. or if abandonment was insufficient BY TAKING FURTHER AFFIRMATIVE ACTION that prevented the commission.
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what counts as voluntary renunciation?
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it is not voluntary if it is motivated in whole or in party: 1) by CIRCUMSTANCE NOT PRESENT AT THE INCEPTION OF THE ACTORS COURT OF CONDUCT THAT INCREASES THE PROB. OF DETECTION or make it more difficult to do; OR 2) by a DECISION TO POSTPONE the criminal conduct until another time or to transfer the criminal act to another buy similar object or victim
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Criminal Liability as an aider and abbettor 7.01
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Texas abolished all levels of guilt (principals, aidors, abettors, ect), and people are now only "parties" to a crime. Criminal Responsibility=party. Each party to an offense may be charged with the commission of the offense.
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Criminal resp. cont.
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if in the attempt to carry out a conspiracy to commit one felong, another felony is committed by one co-con. then all co-con's are guilt, even though none of them intended to commit the crime, if the offense was committed in furtherance of the unlawful purpose and was one that SHOULD HAVE BEEN ANTICIPATED as a result of carrying out the conspiracy. (pinkerton rule for criminal resp.)
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what makes a defendant a party
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if the offense is committed: by his conduct; or by conduct of another he is criminally resp. for; or Both
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Defenses to persecution in which the actor crim. resp. is based on the conduct of another?
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1) ACTOR BELONG TO A CLASS PERSON that by definition of the offense IS LEGALLY INCAPABLE of COMMITTING THE OFFENSE IN AN INDIVIDUAL CAPACITY; or 2) that the person for who CONDUCT THE ACTOR IS CRIMINALLY RESPONSIBLE has been aquitted, has not been prosecuted or convicted, has been convicted of a different offense, or IS IMMUNE FROM PROSECUTION
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VICARIOUS LIABILITY
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very similar to respndeat superior (torts). For corporations: agent: on behalf of the Corp.; within the scope of employment. In order for a corp. to be liable for a Felony: it must be authorized, requested, commanded, performed or recklessly tolerated by: majority of governing board; or high managerial agent.
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Agent definition
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means a director, officer, employee, or other person authorized to act in behalf of a corp. or assoc.
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high managerial agent definition
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A) a partner in a partnership; b) an officer of a corp. or assoc.; c) agent of a corp or assoc. who has duties of such resp. that his conduct reasonable may be assumed to represent the policy of the corp. or assoc.
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formal definition for vicarious liability
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if conduct constituting an offense is performed by an agent acting on behalf of a corp. or assoc. and within the scope of his office or employment then the corp. or assoc. is liable.
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performing criminal acts on behalf of a corp. or assoc.
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an individual is criminally resp. for conduct that he performs in the name of or on behalf of a corp. or assoc. to the same extent as if the conduct was performed on his own behalf.
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defenses to crim resp. of a corp. or assoc.
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AFFIRMATIVE DEFENSE: the high managerial agent, having supervisory resp. over the subject matter of the offense, employed DUE DILIGENCE to prevent its commission
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Original concept of "justified" vs. current concept of "justification"
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Conduct is not wrongful b/c it was justified, conduct itself is not wrongful (b/c of the context). The distinction has no practical effect. JUSTIFICATION IS NOT A DEFENSE 9.02
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Defense vs. Aff. Defense v. Imperfect Defense
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Defense- D must present sufficient evidence to raise a defense (satisfying elements), the it becomes the prosecutions BURDEN TO DISPROVE THE EXISTENCE OF THE DEFENSE BEYOND A REASONABLE DOUBT. 2) affirmative defense- quasi justification for the D's action. Must be by preponderance of the evidence by the defendant. BURDEN DOES NOT SHIFT. 3) Imperfect defense- defense that does not result in acquittal, but requires conviction of a less serious offense- usually used in homicide cases BUT NOT USED IN TEXAS.
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Nessecity
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Conduct is justified if: 1) the actor REASONABLY BELIEVES THE CONDUCT IS IMMEDIATELY NECESSARY to avoid IMMINENT harm. 2) the desirability and urgency of avoiding the harm CLEARLY OUTWEIGH, ACCORDING TO ORDINARY STANDARDS OF REASONABLENESS, the harm sought to be prevented by the law proscribing the conduct; and 2) a legislative purpose to exclude the justification claimed for the conduct does not otherwise PLAINLY APPEAR
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Duress
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Affirmative defense. Threat must be imminent and direct at defendant or another person. What conduct you need to make duress for each type of crime: felony- death or serious bodily injury; non felony- force or threat force; compulsion- render a person of reasonable firmness incapable or resisting the pressure. YOU CANNOT INTENTIONALLY, KNOWINGLY, or RECKLESSLY PUT YOURSELF IN THAT PLACE (if you join a gang you cant claim duress when they make you kill someone). Spouse DOES NOT have a less standard.
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Self Defense Generally
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Two types of situations covered in the code: 1) those involving ordinary force- requires the actor to reasonably believe the force is immediately necessary (verbal provocation alone is insufficient, can resist unlawful arrrest); and 2) those involving deadly force- retreat is not longer a requirement
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self defense language
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a person is justified in using S.D when and to the degree THE ACTOR REASONABLY BELIEVES the force is IMMEDIATELY NECESSARY to protect the actor agains the other's use or attempted use of the unlawful force.
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self defense and the actors belief that force is immediately necessary
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1)the actors belief that the force was immediately necessary is PRESUMED to be REASONABLE if the actor: knew or has reason to believe that teh person against whom the force was use: UNLAWFULLY and with force ENTERED, or was attempting to enter the actors OCCUPIED HABITATION, VEHICLE, OR PLACE OF BUSINESS OR EMPLOYMENT
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Self dense and the actors belief cont.'d
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2) UNLAWFULLY and with FORCE REMOVED, or was attempting TO REMOVE unlawfully and with force, the ACTOR FROM THE ACTOR'S HABITATION,VEHICLE, or PLACE OF BUSINESS or EMPLOYMENT; or C) was committing or attempting to commit aggravated KIDNAPPING, MURDER, SEXUAL ASSAULT, aggravated sexual assault, ROBBERY, or agg. robery
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S.D continued
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2) did not provoke the person against whom force was used; and 3) WAS NOT OTHERWISE ENGAGED IN CRIMINAL ACTIVITY, OTHER THAN A CLASS C that is a violation of a law of ordinance regulating traffic at the time the force was used.
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when SD IS NOT JUSTIFIED
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1) in response to verbal provocation alone; 2) to RESIST AN ARREST OR SEARCH that actor knows is being made by a peace officer even though it is unlawful, UNLESS the resistance is justified under subsection (c); 3) IF THE ACTOR CONSENTED tot he exact force used or attempted by the other; 4) actor provoked the other use of unlawful force, UNLESS: a) ACTOR ABANDONS THE ENCOUNTER, OR CLEARLY COMMUNICATES TO THE OTHER HIS INTENT TO DO SO REASONABLY BELIEVING HE CANNOT SAFELY ABANDON THE ENCOUNTER; and b) OTHER NEVERTHELESS CONTINUES OR ATTEMPTED TO USE UNLAWFUL FORCE AGAINST THE ACTOR.
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SD to resist arrest or search is justified when:
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1) BEFORE THE ACTOR OFFERS ANY RESISTANCE, the peace officer uses or attempts to use GREATER FORCE THAN NECESSARY TO MAKE THE ARREST OR SEARCH; and
2) when and to the degree the ACTOR REASONABLY BELIEVES THE FORCE IS IMMEDIATELY NECESSARY TO PROTECT HIMSELF against the cops use or attempted use of greater force than necessary. |
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Deadly force in defense overview
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very similar to self defense most provisions are word for word the saem
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Deadly force in defense of person
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A) a person is justified in using deadly force against another: 1) if the actor would be justified in using force against the other under self defense and 2) when and to the degree the actor may reasonably believes the deadly force is immediately necessary: a. to protect the actor against the other's use or attempted use of unlawful deadly force; or b) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robber
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Self defense in battering relationships
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main problem is: IMMINENCE; courts are beginning to expand the definition of "imminent" to include but still rare
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defense of third person
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A person is justified in using force or deadly force if: a) UNDER THE CIRCUMSTANCE AS THE ACTOR REASONABLY BELIEVES THEM TO BE, the actor would be justified under self defense or deadly force in using force or deadly force to protect himself agianst the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; AND b) the ACTOR REASONBLY BELIEVES that his intervention is immediately necessary to protect the third person.
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Protection of ones property
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a) a person IN LAWFUL POSSESSION of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is IMMEDIATELY NECESSARY TO PREVENT or TERMINATE THE OTHER'S TRESPASS ON THE LAND OR UNLAWFUL INTERFERENCE WITH THE PROPERTY
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protection of ones property con't.
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b) a person UNLAWFULLY DISPOSED of land or tangible, movable property by another is justified in using force agaisnt the other when and to the degree the ACTOR REASONABLY BELIEVES the force is IMMEDIATELY NECESSARY TO REENTER THE LAND OR RECOVER THE PROPERTY if the actor uses the force IMMEDIATELY or IN FRESH PURSUIT after the dispossession AND: 1) the ACTOR REASONABLY BELIEVES the other had NO CLAIM OF RIGHT when he dispossessed the actor; OR 2) the other accomplished the dispossession by USING FORCE, THREAT, or FRAUD AGAINST THE ACTOR.
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deadly force to protect property
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A person is justified in using deadly force against another to protect land or tangible movable property 1) if he would be justified in using force against the other under defense of property; 2) when and to the degree he reasonably believes the deadly force is immediately necessary: a) to prevent the other's IMMINENT COMMISSION of arson, burglary, robbery, aggravated robbery, theft during the nighttime or CRIMINAL MISCHIEF during the nighttime; OR b) to prevent the other who is fleeing immediately after committing burglary, robbery, agg. robbery, or theft during the nighttime from escaping from the property AND 3) he reasonably believes that: a) the land or property CANNOT BE PROTECTED OR RECOVERED BY ANY OTHER MEANS; or b) the use of force other than deadly force to protect or recover the land or property WOULD EXPOSE THE ACTOR OR ANOTHER TO A SUBSTANTIAL RISK OF DEATH OR SERIOUS BODILY INJURY.
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Device to protect property
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the justification afforded by defense of property and deadly force to protect property only applies to the use of a device to protect land or tangible, movable property if: 1) the device is not designed to cause, or known by the actor TO CREATE A SUBSTANTIAL RISK OF CAUSING DEATH OR SERIOUS BODILY INJURY; AND 2) use of the device is reasonable under all the circumstances as the ACTOR REASONABLY BELIEVES them to be when he installs the device.
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Entrapment
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2-prong test in Texas 1) D was ACTUALLY induced by police (subjective); AND 2. an ORDINARY PERSON would have been induced (objective). NOTE: jacobson- Law enforcement actually convinced him to receive child porn for over a 2 1/2 year period
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Entrapment statutory language
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a) it is a DEFENSE to prosecution that the actor engaged in the conduct charged b/c HE WAS INDUCED TO DO SO BY A LAW ENFORCEMENT AGENT using persuasion or other MEANS LIKELY TO CAUSE PERSON TO COMMIT THE OFFENSE. Conduct merely AFFORDING A PERSON AN OPPORTUNITY TO COMMIT AN OFFENSE DOES NOT CONSTITUTE ENTRAPMENT.
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Diminished capacity? does Tx recognize
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Texas does not recognize deminshed capacity. You can try to show a failure of proof of the required C.M.S, using mental illness
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Insanity
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AFFIRMATIVE DEFENSE
M'Naghten Rule- Actor did not know his actions were wrong, this is the only way to get insantiy (did not know it was illegal). Knowing right from wrong is the key. If D knew his actions were illegal, then he knew that they wrong, and cant use insanity. Circ. evidence such as fleeing from the police giving false identification can be used to show D knew the action was wrong. TX Juries cannot be told the consequences of an aquittal on the basis of insantiy-- meaning if they win on this they just to a mental asylm instead of prison |
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incompetency
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found in crim pro- Two prongs: 1) D lacks a reasonble as a factual understanding of the proceedings against him. 2) D lacks the ability to reasonably consult with his attorney. Rebuttable presumption of Competency- must prove it by a P.O.T.E. THIS IS NOT A DEF. OR A AFF. DEF. ---It bars trial if proved, D is THEN TRIED IF AND WHEN HE BECOMES COMPETENT
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criminal responsibility
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(a) A person is criminally responsible for an offense
committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as |
