Texas Penal Code

Objectives of Code

-To insure the public safety through:

(A) the deterrent influence of the penalties

hereinafter provided;

(B) the rehabilitation of those convicted of violations

of this code; and to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and

(6) to define the scope of state interest in law

enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

Territorial Jurisdiction

Either the conduct or a result that is an element of the offense occurs inside this state

Computation of Age

A person attains a specified age on the day of the anniversary of his birth-date.

Act

A bodily movement, whether voluntary or

involuntary, and includes speech.

Actor

A person whose criminal responsibility is in issue in a criminal action. Whenever the term "suspect" is used in this code, it means "actor."

Agency

Includes authority, board, bureau, commission, committee, council, department, district, division, and office.

Bodily Injury

Means physical pain, illness, or any impairment of physical condition.

Serious Bodily Injury

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.

Coercion

Means a threat, however communicated:

(A) to commit an offense;

(B) to inflict bodily injury in the future on the person threatened or another;

(C) to accuse a person of any offense;

(D) to expose a person to hatred, contempt, or ridicule;

(E) to harm the credit or business repute of any person; or

(F) to take or withhold action as a public servant, or

to cause a public servant to take or withhold action.

Conduct

Means an act or omission and its accompanying mental state.

Correctional Facility

Means a place designated by law for the confinement of a person arrested for, charged with, or

convicted of a criminal offense. The term includes:

(A) a municipal or county jail;

(B) a confinement facility operated by the Texas Department of Criminal Justice;

(C) a confinement facility operated under contract with any division of the Texas Department of Criminal Justice; and

(D) a community corrections facility operated by a community supervision and corrections department.

Deadly Weapon

A firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Consent

Means assent in fact, whether express or apparent.

Effective Consent

Includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by force, threat, or fraud;

(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 decisions; or

(D) given solely to detect the commission of an offense.

Element of Offense

(A) The forbidden conduct;

(B) The required culpability;

(C) Any required result; and

(D) The negation of any exception to the offense.

Felony

An offense so designated by law or punishable by death or confinement in a penitentiary.

Harm

Anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Individual

A human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

Misdemeanor

An offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail.

Possession

Means actual care, custody, control, or management.

Public Place

Any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.

Public Servant

A person elected, selected, appointed, employed, or otherwise designated as one of the following, even if he has not yet qualified for office or assumed his duties:

(A) an officer, employee, or agent of government;

(B) a juror or grand juror; or

(C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; or

(D) an attorney at law or notary public when participating in the performance of a governmental function; or

(E) a candidate for nomination or election to public office; or

(F) a person who is performing a governmental function under a claim of right although he is not legally qualified to do so.

Reasonable Belief

A belief that would be held by an ordinary and prudent man in the same circumstances as the actor.

Secure Correctional Facility

A municipal or county jail; or

(B) a confinement facility operated by or under a contract with any division of the Texas Department of Criminal Justice.

Unlawful

Criminal or tortuous or both and includes what would be criminal or tortuous but for a defense not amounting to justification or privilege.

Death

For an individual who is an unborn child, the failure to be born alive.

Prosecuting Attorney

Prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.

Proof Beyond a Reasonable Doubt

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

Presumption

If there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury

Defense

-"It is a defense to prosecution..."

-REASONABLE DOUBT

-Easier to prove

Affirmative Defense

-"It is an Affirmative Defense to Prosecution..."

-Prosecuting attorney not required to negate existence.

-Proved by PREPONDERANCE OF EVIDENCE

-Harder to prove

Criminal Episode

The commission of 2 or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item. Common scheme/Similar offenses.

Requirement of Voluntary Act or Omission

A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

(b) 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.

Requirement of Culpability

A person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires. municipal ordinance or by order of a county commissioners court may not dispense with the requirement of a culpable mental state

Culpable Mental States

1) Intentionally

2) Knowingly

3) Recklessly

4) Criminal Neglience

Intentionally

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.

Knowingly

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.

Recklessly

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.

Criminal Negligence

He OUGHT to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Failure to perceive/Gross deviation from standard of care/ordinary person.

Parties to Offenses

-Criminally responsible as party to offense if committed by self, person criminally responsible to or both.

-Each party may be charged with offense.

-Traditional distinction of accomplices are abolished by this section, and all may be charged with same crime.

Defenses to Criminal Responsibility

8.01 Insanity

8.02 Mistake of Fact

8.03 Mistake of Law

8.04 Intoxication

8.05 Duress

8.06 Entrapment

8.07 Age affecting criminal responsibility

8.08 Child with Mental Illness, Disability, or Lack of Capacity

Insanity

Affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Mistake of Fact

Defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

Mistake of Law

No defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect

Voluntary Intoxication

Does not constitute a defense to the commission of crime.

Duress

It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent DEATH or SERIOUS bodily injury.

-IF for offense that does NOT constitute a felony, affirmative defense actor engaged because compelled by Force or Threat of Force.

-Defense is unavailable if actor Intentionally, knowingly, recklessly place self in situation that compulsion was probable.

-NO DEFENSE if acted on command or persuasion of spouse unless compulsion established as above.

Entrapment

He was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.

Age Affecting Criminal Responsibility

A person may not be prosecuted for or convicted of any offense that the person committed when younger than 15 years of age EXCEPT:

(1) perjury and aggravated perjury when it appears by proof that the person had sufficient discretion to understand the nature and obligation of an oath. a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age

Class A Misdemeanor (Highest)

A fine not to exceed $4,000;

(2) confinement in jail for a term not to exceed one year; or

(3) both such fine and confinement.

Class B Misdemeanor

A fine not to exceed $2,000;

(2) confinement in jail for a term not to exceed 180 days; or

(3) both such fine and confinement.

Class C Misdemeanor (Lowest)

A fine not to exceed $500.

Capital Felony

-Texas Department of Criminal Justice for life without parole or by death.

-A case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

1) Life, if the individual committed the offense when younger than 18 years of age; or

2) Life without the possibility of parole, if the individual committed the offense when 18 years of age or older

First Degree Felony

-Punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years

-A fine not to exceed $10,000.

Second Degree Felony

-Punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.

-Punished by a fine not to exceed $10,000.

Third Degree Felony

-Punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.

-A fine not to exceed $10,000.

State Jail Felony

-An individual adjudged guilty of this shall be punished by confinement for any term of not more than 2 years or less than 180 days.

-A fine not to exceed $10,000.

Life

-40 years with possibility of parole

Life Without Parole

-No chance; Die in prison

Preparatory Offenses

-Criminal Attempt

-Criminal Conspiracy

-Criminal Solicitation

-Criminal Solicitation of a Minor

Criminal Attempt

-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.

-One category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.

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.

-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

Criminal Solictation

-Intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.

-A FELONY 1 if the offense solicited is a capital offense; OR FELONY 2 if the offense solicited is a FELONY 1.

Criminal Solicitation of a Minor

-If, with intent that an offense be committed, the person requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believes them to be, would constitute an offense or make the minor a party to the commission of an offense...

-An offense under this section is ONE CATEGORY LOWER than the solicited offense, except that an offense under this section is the SAME CATEGORY as the solicited offense if it is shown on the trial of the offense that the actor:

(1) was 17 years of age or older and a member of a criminal street gang

(2) committed the offense with the intent to: (A) further the criminal activities of the criminal street gang; or (B) avoid detection as a member of a criminal street gang.

-In this section, "minor" means an individual younger than 17 years of age.

Unlawful Use of Pen Register and Trace Device

-Knowingly installs or uses a pen register or trap entry's device to record or decode electronic or other impulses for the purpose of identifying telephone numbers dialed or otherwise transmitted on a telephone line...

-SJF

Unlawful access to storage communications

-If the person obtains, alters, or prevents authorized access to a wire or electronic communication while the communication is in the electronic storage by:

(1) intentionally obtaining access without authorization to a facility through which a wire or electronic communications services provided; OR

(2) intentionally exceeding an authorization for access to a facility what you wire or electronic communications services provided

-Class A misdemeanor

Illegal Divulgence of Public Communications

-If the person knowingly divulges the contents of a communication to another who is not the intended recipient

-A scrambled or encrypted radio communication = State Jail Felony

-If the communication is not a public land mobile radio service = Class A Misdemeanor

-If the communication is a public land mobile radio service = Class C Misdemeanor

Unlawful Installation of Tracking Device

-If the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person

-Class A Misdemeanor

Types of Criminal Homicide

-If he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

Murder

-Intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission.

-FELONY 1

Sudden passion

-Means passion directly caused by and arising out of provocation by the individual killed or another acting with the person which passion arises at the time

-if the defendant proves that issue in the affirmative by preponderance of evidence, the offense is downgraded to a FELONY 2

Adequate cause

Cause that would commonly produce a degree of anger, Rage, resentment, or terror in a person of ordinary temper

Capital Murder

A peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat commits the murder for remuneration or the promise of remuneration.

-The person murders an individual under 10 years of age.

Manslaughter

-Recklessly causes the death of an individual.

-Felony of the 2nd Degree.

Criminally Negligent Homicide

-Commits an offense if he causes the death of an individual by criminal negligence.

-State jail felony.

Applicability to Certain Conduct

-Apply to the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.

-Example: Mother on crack kills her child

Restrain

-Person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another.

Abduct

-Restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found; or using or threatening to us deadly force.

Unlawful Restraint

-If he intentionally or knowingly restrains another person.

-Class A Misdemeanor

-SJF if person is a child younger than 17 years of age

-3rd Degree Felony if actor recklessly expose the victim to a substantial risk of SBI

Kidnapping

-Intentionally or knowingly abducts another person.

-Affirmative defense to prosecution under this section that: The abduction was not coupled with intent to use or to threaten to use deadly force.

-FELONY 3

Aggravated Kidnapping

-Intentionally or knowingly abducts another person with intent to hold him for ransom or reward, use him as a shield or hostage, facilitate the commission of a felony or the flight after the attempt or commission of a felony.

-Inflict bodily injury on him or violate or abuse him sexually.

-Terrorize him or a third person or exhibits a deadly weapon during the commission of the offense.

-FELONY 1; OR FELONY 2 if released voluntarily

Smuggling of Persons

-Intentionally uses a motor vehicle, aircraft, or watercraft to transport an individual with the intent to conceal the individual from a peace officer or special investigator.

-Flee from a person the actor knows is a peace officer or special investigator attempting to lawfully arrest or detain the actor.

-An offense under this section is a FELONY 3

-FELONY 2 if the people being smuggled are at serious risk for SBI or death

-FELONY 1 if smuggled individual was victim of sexual assault, suffered SBI, or death

Continuous Smuggling of Persons

-During a period that is 10 or more days in duration the person engages 2 or more times in conduct that constitutes an offense

-FELONY 2

-FELONY 1 if smuggled individual was victim of sexual assault, suffered SBI, death, or a child younger than 18 years of age at the time

Trafficking of Persons

-Traffics another person with the intent that the trafficked person engage in forced labor or services. Receives a benefit from participating in a venture that involves an activity described by Subdivision (1), including by receiving labor or services the person knows are forced labor or services.

-Receives a benefit from participating in a venture that involves an activity described.

-FELONY 2; OR

-FELONY 1 if death occurs while being trafficked

Continuous Trafficking of Persons

-If, during a period that is 30 or more days in duration, the person engages 2 or more times in conduct that constitutes an offense under Trafficking Persons against one or more victims.

-FELONY 1 punishable by imprisonment in the Texas Department of criminal justice for life or for any term of not more than 99 or less than 25 (different from F1; minimum is set at 25 years)

Deviant sexual intercourse

Means any contact between any part of the genitals of one person in the mouth or anus of another person or; the penetration of the genitals or the anus of another person within object

Sexual contact

Any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person

Sexual intercourse

Means any penetration of the female sex organs by the male sex organ

Spouse

Means a person to whom a person is a legally married (can include common-law)

Cont. Sexual Abuse of Young Child or Children

-30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims.

-FELONY 1 punishable by imprisonment in the Texas Department of criminal justice for life or for any term of not more than 99 or less than 25 (different from F1; minimum is set at 25 years)

Homosexual Conduct

-Deviate sexual intercourse with another individual of the same sex.

-Class C Misdemeanor

-Unconstitutional by Lawrance v. Texas

Public Lewdness

-A person commits an offense if he knowingly engages in any of the following acts in a public place or , if not in a public place, he is reckless about whether another is present who will be offended or alarmed by this;

1) act of sexual intercourse

2) act of deviate sexual intercourse

3) act of sexual contact

4) act involving contact between the person mouth or genitals and the anus or genitals of an animal or fowl.

-Class A Misdemeanor

Indecent Exposure

-Exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is RECKLESS about whether another present who will be offended or alarmed by his act.

-Class B misdemeanor

Indecency with a Child

-YOUNGER THAN 17 yo.

-Engages in SEXUAL CONTACT with the child or causes the child to engage in sexual contact (FELONY 2).

-Exposes the persons anus or any part of the persons genitals, knowing the child is present, or causes child to do so (FELONY 3).

Improper Relationship Between Educator and Student

-An employee of a public or private primary or secondary school commits and offense if the employee engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works.

-FELONY 2

Invasive visual recording

-If, without the other person's consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by video tape or other electronic means records, broadcast, or transmit a visual image of an intimate area of another person...

-STATE JAIL FELONY

Improper Photography or Visual Recording

-Photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location.

-With intent to invade the privacy of the other person or arouse or gratify the sexual desire of any person.

-State Jail Felony.

Assault

-Intentionally, knowingly, or recklessly cause bodily injury to another, including the persons spouse. Intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse (CLASS A).

-FELONY 2 if prior record of Family Violence

-FELONY 3 IF public servant, Family Violence, or impedes the normal breathing or circulation

-CLASS A if the offense is committed against elderly individual or disabled individual; OR actual assault of sports participant

-CLASS B for a threat of sports participant

-CLASS C misdemeanor intentionally or knowingly threatens another with imminent bodily injury, including the persons spouse OR assault by contact

Sexual Assault

-A person commits an offense if the person:

(1) intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or

(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor

-SECOND DEGREE FELONY; OR

-FIRST DEGREE FELONY if there is bigamy involved

Aggravated Assault

-If the person commits assault as and the person:

(1) causes SBI to another, including the person's spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

-FELONY 2; OR

-FELONY 1 if (1) the actor uses a deadly weapon during the commission of the assault and causes SBI to a person whose relationship to or association with the defendant OR (A) by a public servant; (B) against a person the actor knows is a public servant, or in retaliation

Aggravated Sexual Assault

-If the person: intentionally or knowingly causes:

-The penetration of the anus or sexual organ of another person by any means, without that person's consent;

-The penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or

-The sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or

-Causes SBI, uses a deadly weapon, uses a drug like GHB, victim is younger than 14 years of age, victim is elderly, or victim is disabled

-FELONY 1

-Minimum term of imprisonment for an offense under this section is increased to 25 years if the victim of the offense is younger than 6 years of age at the time the offense is committed and the actor commits the offense.