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Under Sec. 22.08 of the Penal Code, is it a crime to aid another in suicide.  That crime is defined as “(a)  A person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.  (b)  An offense under this section is a Class C misdemeanor unless the actor’s conduct causes suicide or attempted suicide that results in serious bodily injury, in which event the offense is a state jail felony.”   Thus, you could face 180 days to 2 years in jail for aiding in the suicide of another, even if they are unsuccessful but hurt themselves severely.  However, the Penal Code does not define “aiding” so a jury would have to use the common meaning of the word.

At common law, aiding and abbetting rendered a person guilty as a principal in the second degree.   It consisted in being present at the time and place, and doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.  Under this definition, Ms. Carter could and would not be guilty of assisting suicide.    Under Webster’s dictionary, aiding  is defined as 1) transitive verb:  to provide with what is useful or necessary in achieving an end aid a cause aid a friend, and 2) intransitive verb:  to give assistance research that aided in the discovery a new drug.  Here, Ms. Carter only gave mere words of encouragement.  She did not provide any pills or poison gas, or help at the scene or give him a gun.  It would be a stretch to say here words were useful or necessary in achieving the end.

Her words, as awful as they were, do not likely fit any Texas homicide or suicide statute.   She may fit under a harassment or stalking statute, but that is a story for a different day.suicidal-tendencies-1563013-300x198

pills-300x211This begs the question, how could encouragement alone ever be the but for of another person actually killing himself?   A jury would have to find that but for Ms. Carter’s conduct, the deceased would not have killed himself.  Then, the state would have to show also that the concurrent cause (method of death, other factors pushing suicide) were not sufficient on their own to cause death.  That would be a very large uphill battle for the prosecutor, because a person who kills themselves by definition caused their own death by some act.

But, couldn’t she be a party to a crime?   Section 7.02 of the code of the Penal Code defines the law of parties.   One might think this would apply, but it really doesn’t.  Under the law of parties “(a)  A person is criminally responsible for an offense committed by the conduct of another if:  (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.”  Thus, encouraging someone to kill ANOTHER could cause you to be a party to manslaughter or murder.  Killing oneself though, is not manslaughter or murder, because it is taking your own life, not the life of another.  As much as Texas has criminalized behavior, killing yourself is still not a crime.

All of this considered, I think a jury would have a very difficult time in Texas convicting a person of manslaughter for encouraging suicide, and futher think that the Courts of Appeals and Court of Criminal Appeals would have a very tough time sustaining it.   But, there is a lesser crime in Texas that could possibly stick.

suicide-225x300Emotions ran high last week as Michelle Carter was sentenced to prison under Massachusetts’ manslaughter law for encouraging her boyfriend to kill himself, which he did.  Under the apparent facts of the case, she overcame with words her boyfriend’s reluctance to kill himself due to her crazed need for attention.   What would happen if something similar happened in Texas?

Section 19.04 of the Texas Penal Code defines manslaughter as  “(a)  A person commits an offense if he recklessly causes the death of an individual.  So, one must recklessly cause the death of another.  But what is reckless?    Under section 6.03(c), “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when 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 disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”  We normally liken recklessness to intentionally driving a car well above the speed limit through a neighborhood.  There is a known risk that something bad is likely to happen.  Thus, a person encouraging suicide could be convicted of manslaughter and face 2-20 in prison if she recklessly caused the death of an individual through suicide.    But how does encouraging simply alone CAUSE the death of another, when the individual’s own acts are what actually results in his death?  This is where the Texas law gets narrow on the issue.   Section 6.04 of the Penal Code defines causation as  “(a)  A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

test-tubes-1412883-200x300While on this point, people often ask whether they should take a chemical test when arrested for driving while intoxicated.   Our general response as defense attorneys is NO, because there are a lot of things that can go wrong with chemical testing.   Both breath testing and blood testing are inexact sciences, and there are lots of human and mechanical errors that can happen to give you a much different result than your actual blood alcohol content.  The test is also completely in the hands of the State, and officers and the laboratory employees can tamper with or mishandle the evidence.  Also, if your blood alcohol content is above the legal DWI limit of .08, you are only producing evidence against yourself.

However, if you are sure your blood alcohol content is zero or close to it, it might be to your advantage to take such a test assuming everything goes right.  Also, there is a shorter ALR license suspension for a chemical test failure, as you are implied by law to consent to chemical testing upon request by law enforcement.    Additionally, Grayson County and neighboring counties have a “no refusal” policy for driving while intoxicated, and a warrant will almost always be applied for by the officer and obtained from a judge.   They will likely take you to the hospital and draw your blood with a warrant upon refusal.   So, the general answer is still that one should refuse a breath or blood test upon request as far as a DWI case is concerned, but they will normally get your blood through search warrant.   However, there are challenges to the search warrant that can be had if it is not proper.

arab-mosque-1-1533662.jpgImportantly, the Penal Code does not define what an “explosive or incendiary device” is, which is a big problem in prosecuting a hoax bomb case. The legislature needs to revisit this issue and make the definitions more clear. Under 46.01(2), “‘Explosive weapon’ means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.” This is more specific but it is not incorporated into the hoax bomb definition or statute. It probably needs to be, so the legislature needs to diligently review this Penal Code section if it wants to make an enforceable offense. Jurors are allowed to use plain meaning to define terms that are not defined in the code, but isn’t “explosive device” and “incendiary device” a little overbroad?

It appears that there certainly is little or no case against Mr. Mohamed, and the government might have a hard time legitimately prosecuting this statute if a hoax bomb as intended to be defined does pop up.

So, Mr. Mohamed, keep working on your dreams. I see a scholarship in your future if you are truly interested in engineering and science. But, any time you bring a unique device to school, let them know ahead of time so everyone is on the same page. There is certainly a level of profiling of Arab Americans and Muslim Americans since 9-11 both nationally and internationally, so you must be aware of this in your endeavors. Use your new celebrity for the good of mankind, however you see best to do so.

clock1.jpgIrving Police based their investigation on investigation of possession of an explosive weapon or hoax bomb. When it was ruled out that the item was not an explosive weapon, possession of which would be a third degree felony, the fall back statute became possession of a hoax bomb. Texas Penal Code 46.01 defines a hoax bomb: “(13)’Hoax bomb’ means a device that: (A) reasonably appears to be an explosive or incendiary device; or (B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.” Thus, anything that “reasonably appears” like an “explosive or incendiary device” warrants closer review. That’s common sense in a way, but isn’t that a broad definition. There are many things that could be considered “explosive” or “incendiary” which are not illegal. Wouldn’t a cigarette lighter meet this definition? While that might be a violation of school rules to possess, it is certainly not criminal. Why didn’t they just say “reasonably appears to be an explosive weapon”?
Additional review of the statutes give us little further guidance.

Under Penal Code section 46.08 “[a] person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to: (1) make another believe that the hoax bomb is an explosive or incendiary device; or (2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.” Such an offense is a class A misdemeanor. Okay, so we really haven’t pinpointed what a hoax bomb is, but if we use something that maybe is a hoax bomb to make someone else believe it is a hoax bomb or cause emergency services to react, we have committed a misdemeanor.

Ahmed Mohamed recently became an international celebrity by being detained by the Irving Police on suspicion of a hoax bomb at school. Mr. Mohamed brought a “rearranged” clock to school in a carrying case which reportedly looked suspiciously like a bomb or bomb detonating device. In the post 9-11 world, things are taken far more seriously, and it was probably a questionable idea to bring the clock in its condition into class without an up-front talk with the school, but such are the minds of 14 year olds. 17-ahmed-mohamed-gmaw529h529.jpgFrom the Iraq war, it was learned that items as small as cell phones or even garage door openers could trigger large bombs which killed Americans. Teachers and administrators were alarmed at the look of the clock device, and called in police. They claimed Mr. Mohamed was evasive with questioning, and was detained on suspicion of a hoax bomb.

Nationally, the case is being used as a hot point to debate the fear or profiling of Muslims by law enforcement. But, the case could actually come down to a poorly written statute and miscommunication by the student to the school. Ahmed by all accounts is a bright and curious kid who likes to tinker with such things as clocks and electronics. His creativity should be encouraged and supported. But, is this another “example” of “Islamaphobia in Texas” for a child to be detained and questioned regarding the improvised or rearranged clock, or would any child regardless of religion or creed be detained for such a “suspicious looking device”? The school district is not allowed to comment on the contents of the questioning. So, without a court case which does not appear forthcoming, there will likely be no record. However, the student’s family has hired a lawyer for a potential civil rights case which may develop the facts more coherently.

high-school-2-1460866.jpgIn Coronado v. State, the Texas Court of Criminal Appeals tackled a “scope” issue in reviewing a case of a student who was attempting to leave campus during school hours. The student claimed to be going to a relative’s funeral, but the assistant principal called his family and found this untrue. The student was also “evasive” in response to questions. The assistant principal patted down the student in an officer’s presence and found no safety risks. He then searched Coronado’s person and found $197 in currency, searched the student’s locker and the trunk of the student’s car. In the trunk, the assistant principal found cocaine, marijuana and a balance beam.

The Texas Court of Criminal Appeals overturned the search. It found that the principal:

“had reasonable grounds to investigate why appellant was attempting to leave school and was justified in ‘patting down’ appellant for safety reasons. However, the subsequent searches violated the second prong of T.L.O. The searches were not reasonably related in scope to the circumstances which initially justified [his] interference with [Coronado], i.e., [the assistant principal’s] suspicion of appellant’s skipping school. Nor were the searches reasonably related to any discovery from the initial ‘pat down.’ Rather, the post ‘pat down’ searches of appellant’s clothing and person, locker and vehicle were excessively intrusive in light of the infraction of attempting to skip school. Additionally, nothing observed during the pat down or subsequent search of appellant’s clothes and person, or locker, would justify [his] expansion of the search to appellant’s vehicle.”

locker-1426008.jpgAll of us have had the experience of being called to the principal’s office. Well, most of us. Many juvenile delinquent conduct investigations begin this way, with a call and questioning by the principal, a search of a student’s locker or purse, or a pat down of a student suspected to be in contraband. Our first thought as Americans would assume that a student at a school has the same Fourth Amendment protection against unreasonable searches and seizures as an adult, but that isn’t quite so. The Supreme Court directly addressed this issue in New Jersey v. T.L.O., 469 U.S. 325.

In T.L.O., a principal had searched a student’s purse and found marijuana, cigarettes, money and drug notes after information from a teacher that the student was smoking cigarettes in the bathroom and in possession of cigarettes against school rules. The Supreme Court upheld the search, stating that different standards apply to searches of students by school officials than searches by police and held:

“We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of school children with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the …action was justified at its inception…; second, one must determine whether the search as actually conducted was ‘reasonably related in scope to the actual circumstances which justified the interference in the first place.'”

Harley.jpgSection 15.02 of the Texas Penal Code makes criminal conspiracy a crime one level lower than the actual substantive offense. It states: “(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons 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…(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.”

Thus, to have probable cause to arrest a biker present at the Waco Twin Peaks on the day of the shooting for suspicion of conspiracy to commit capital murder, an officer would need probable cause that that individual specifically took an act that day intending that a felony be committed, agree with another person that they engage in conduct that would constitute capital murder, and one of them perform an act in furtherance of the conspiracy. Thus, being a biker there for the meeting alone would not be anywhere near probable cause in itself to be arrested for conspiracy to commit capital murder, even if you were wearing a similar jacket or vest to bikers involved in the shooting. The sweep was very broad and we should all be concerned about the implications of such a mass arrest. Injustice anywhere is a threat to justice everywhere.