Sherman & Plano, TX Criminal Defense Lawyer Blog
Representing the mentally ill is a big part of any true criminal defense practice. Citizens accused of crimes are normally undereducated and under medicated, so to speak. The statistics bear that too many have not finished high school for whatever reason, and many have an underlying mental illness that impairs their ability to conform their behavior to the law. If you don’t want to deal with “crazy” people or don’t want to take on tough mental health or intellectual disability cases, you need to find a different area in which to practice law. If you care about your criminally accused clients and want to do the best job possible for them, to understand them and present their best case, the law demands that you be very aware of where criminal law and mental health interact. Our state legislators have found these issues important enough to write many applicable statutes, so you need to find it important enough to read them.
At the first client interview, you can often notice mental illness if you conversate long enough. However, most people suffering from mental illness, from minor depression to severe bipolar or schizophrenia, have learned to adapt themselves to hide and minimize their disorder. Being a person with mental illness is something still looked down upon in our society. If you are representing an adult defendant, they have spent much of their developmental life working around, over and through their disorder. Often, they will do whatever it takes to mask their disorder from the general public. They want to be “normal.” While it is great when a client volunteers that they have a diagnosable mental illness, often your early detective work must pick up on it, or at least on the clues. How does my client look? How do they speak? How is their thought pattern? How does interacting with them feel? What behavioral history can you pick up from their criminal history?
First-interview clues are great, but you have to continue to visit and talk to your client to get to know them well. Ask them if they have any history of mental illness or any history of head injuries. Sometimes you learn the easy way. One of the most surprising things to me in my practice is how many head trauma cases there are out there. Look for it.
And since I practice in Sherman I have to mention the favorite statute of a great murder prosecutor, Grayson County’s own Kerye Ashmore. Texas Penal Code section 6.04(b), the law of “transferred intent”, states that “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.” This allows a murder conviction theory, in a shooting case in which a person shoots into a car or crowd and hits a person he was not intending to shoot, in its most simplistic form. It could also cover an arson case in which a homeless person dies when a structure believed to be empty is burned down by the actor, causing the homeless person’s death.
As for the law of parties, Texas Penal Code 7.02 outlines Texas criminal responsibility: “(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 a result of the carrying out of the conspiracy.” Section (a)(2) is the normal theory of joint criminal responsibility – aiding, encouraging, soliciting – called “law of parties” that is presented to a jury to make a non-triggerman in a case such as a robbery or burglary gone bad liable for the murder by an accomplice to the underlying felony.
The third definition is the Texas codification of the traditional common law concept of “felony murder.” It is unclear why the second and third definition were needed, as they are very similar and intending to cause serious bodily injury is usually felony aggravated assault. The legislature must have wanted to make sure it covered every ground, especially when seats on death row could be at stake. Nevertheless, the third definition requires that a person be committing any felony, from first degree drug distribution to state jail forgery of a financial instrument (such as a check), yes any felony qualifies. At common law, the felony murder rule, as it was harsh, was often limited to felonies “a fortiorti”, i.e. serious felonies such as robbery, arson, burglary and others clearly dangerous to human life. One of the harsh consequences of felony murder is that, under liability as a party to a crime, it often can be charged to any participant in the underlying felony, making one who had no intent of hurting or killing anyone criminally liable for acts of another that resulted in murder. The typical situation is a “robbery gone bad” in which one robber of three shoots the store clerk. All three are on the hook for capital murder. But, felony murder is now also used in DWI cases, in which the felony of DWI3rd is being committed by the driver who has been twice previously convicted, as they are also committing an act dangerous to human life, driving intoxicated, during the commission of the underlying felony of DWI3rd.
Texas Penal Code 6.03 provides us with handy definitions of the intentional and knowing mental states: “(a) A person acts intentionally, or with intent, 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. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Murder is a result oriented offense, i.e. intentionally resulting in death, so at a minimum under the first definition it must be proven that the actor was aware that his action was reasonably certain to cause death. That is the minimum proof required.
Criminal news in Texas seems to revolve around murder. Once a week we pick up the newspaper and someone has shot or stabbed somebody for something. Murder as an offense tends to be “complicated” legally because of the many defenses, beginning with the required mental states and running the gauntlet down to what Percy Foreman called “misdemeanor murder” — the jury lets the defendant go because the sumbitch that died “deserved it.” Texas also recognizes “sudden passion” where in the old days murder was reduced from a capital punishment or life-in-prison-potential to simple “involuntary manslaughter.” A husband was understandably out of his mind when he caught his wife in bed with the milkman, shot one or both of them, but shouldn’t be guilty of “murder.” “Sudden passion” still exists, but now as a punishment mitigation issue which reduces the punishment range for murder to the standard manslaughter level.
The punishment scheme for theft in Texas is relatively straight-forward by statute, which stair-steps from a Class C traffic level all the way up to a first degree felony. The statute says theft is:
Theft does not even require that you actually take the property permanently. “Deprive” is defined to mean “(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner; (B) to restore property only upon payment of reward or other compensation; or (C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.” If you take a car without permission and wreck it, there is a good chance you could be prosecuted for theft. If you keep a car wrongfully for so long that it depreciates substantially in value, you can be prosecuted for theft even if you return it. So, be VERY careful if you are in the auto towing or repossession business!
The Penal Code says that “Consent is not effective if: (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 dispositions; … or (E) given by a person who by reason of advanced age is known by the actor to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.” So, you cannot gain effective consent by either false pretenses or threats, youth, old age, mental illness or even intoxication.
Theft has many meanings in our everyday vernacular, but under Texas law it is pretty straight-forward. Section 31.03 of the Penal Code consolidated all of the old theft statutes into a more (mostly) simplified version. It states “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. (b) Appropriation of property is unlawful if: (1) it is without the owner’s effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another…” Thus, you can steal it yourself as always, but in Texas knowingly purchasing stolen property is theft as if you had stolen it yourself.