Sherman & Plano, TX Criminal Defense Lawyer Blog
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.
If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.
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.
The presumption of detention is rebuttable, but very daunting. A person charged with a presumption case offense must rebut the presumption by clear and convincing evidence. This is the second most onerous burden in our law, right below proof beyond a reasonable doubt. Release is obviously far less common in these cases, but people with minor (or unprovable or nonexistent) roles in the offense with minimal criminal history who have a third party custodian stand a chance, and should not simply waive the detention hearing. In fact, the only time a person should waive their detention hearing is when they are being held outside the Federal courts: i.e., they would not be getting double credit for the holds if released, or people who have immigration holds. Even in these cases, the court can reopen the detention hearing if circumstances materially change, such as making bond on state charges (common) or getting the immigration hold lifted (rare).
Community and family ties are very important in the Eastern District of Texas Sherman Division. The judges give lots of weight to whether a third party custodian exists: i.e. a responsible family member or very close friend who can supervise the defendant and report any violations to the court. The toughest problem detainees face in this District is the “presumption” case. In drug conspiracy and other serious offenses, a rebuttable presumption exists that no set of conditions exists to ensure the safety of the public or the appearance of the defendant. These cases by statute include: “(1)…(A) a crime of violence, a violation of section 1591, or an offense listed in section 2332b (g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed; B) an offense for which the maximum sentence is life imprisonment or death; (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46; (D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or (E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code…” Probably 90 percent or more of drug conspiracies allege a drug weight amount high enough to trigger the ten to life sentencing range.
At the detention hearing, the judge determines according to statute whether any “condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community.” 18 USC 3142(b). Basically, will you show up to court and not commit any other offenses? The statute lists factors the judge shall consider: ” (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including– (A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release…”