Study Materials

Criminal Law

Judge Baird


Chapter 1 - Introduction

·         The model Penal Code – May 1962 –common law needed revision to comprehensively address criminal matters

o        It addresses more general matters – more than just definition of particular criminal offenses

o        It carefully defines all matters covered – definitions rather than presumptions

o        Created crime categories – three felonies and two misdemeanors

o        COMMON LAW felonies are those offenses punishable by total forfeiture of land goods or both (murder, manslaughter, sodomy, rape, mayhem, robbery, arson, burglary, and larceny)

o        Added criminal intent – mens rea

Penal code was structured to provide: FAIR WARNING and many other things (deterrence, uniformity, etc.)

·         Revisions of Federal Criminal Law

o        RULE OF LENITY – language must be clear when defining criminal acts, if not, the court resolves any ambiguity in favor of defendant, when there is no legislative intent present


Sentencing Provisions of Modern Criminal Codes

·         Sentencing Reform Act of 1984 – 18 U.S.C.A. – changed sentencing procedures for federal criminal cases















·         Two basic approaches to sentencing:

o        The legislature categorizes the crime and the sentence is determined by this categorization – saves time and is more equal to all being sentenced

o        Individualization of sentences that are handed out taking in all of the characteristics of the crime and of the offender – the severity of the penalty should depend on the blameworthiness of the offender

·         Indeterminate Sentencing Movement

o        Created by the parole system which set out to “sentence” offenders regarding their conduct in jail and their recidivism rate – rehabilitation

In Texas we try to address: Rehabilitate, Deter the activity, Retribution (punishment for punishment’s sake)

o        Judges can take into account their history, severity of this crime, and use minimum and maximum recommended sentences to apply a sentence that is appropriate

o        Offenders can receive parole on good time credit

o        Model Penal Code recommended the establishment of a uniform maximum sentence and judges could set a minimum at an acceptable length

·         Movement for sentencing reform

o        Driven by inequalities in the indeterminate sentence, offenders getting longer sentences for non-legal reasons, and by the fact that a sentence was usually selected arbitrarily, not for any good reason – deterrence

·         Recent Reform: Determinate Sentencing

o        The Federal Sentencing Reform Act of 1984 incorporates a determinate feature that an offender will serve 85% of their sentence

o        Adoption addresses parole concerns but does not address: prosecution plea bargains, judge discretion in sentencing, or multiple charges/convictions, etc.


The Structure of a Non-Capital Criminal Case

Formation of a Law (STATUTE)

Violation of law (Crime)

Suspect Arrested (Stay in Jail or released on bond)

Suspect Charged (Grand Jury indictment(fel) or charged by an Information(misd))

Pretrial Motions and Plea Bargain

Trial (Either convicted or acquitted)

Punishment (Issued by jury or judge)

Appeal (14 courts of appeal statewide – hear either crim or civil) either affirm or reverse

Court of Criminal Appeals (highest court of criminal appeals) (P.D.R. – Petition for Discretionary Review)

U.S. Supreme Court (writ of certiorari)

Habeas Corpus (Bring me the body – to court and takes the case to the trial court which will then go back to the Court of Crim Appeals if the trial judge recommends the case go to crim appeals)

Can then go to Federal District Ct. & Federal Court of Appeals


Pleading Sufficiency

·         If at trial, the prosecution has to prove a fact to secure the defendant’s conviction, that fact must be pleaded in the indictment or information(letter filed by the prosecutor) – Failure to do so will constitute dismissal

Reversible Error – an error that affects a party’s substantive rights or the case’s outcome, and thus is grounds for reversal if the party properly objected

      Admissibility of Evidence

·         Objections to the admissibility of evidence may be raised if the evidence in question is not relevant to some issue in the case

Evidential Sufficiency

·         Sufficient evidence to prove the defendant guilty

Motion for a directed verdict of acquittal – If granted the court takes the case from the jury and places it within the court and is further dismissed.

·         The prosecution can not appeal because that would violate double jeopardy issues. This can not be granted for the prosecution because of a right to jury trial. 

Jury Instructions

·         The jury must always be informed with regard to the elements of the crime charged and told that the prosecution must prove each element beyond a reas dbt.

·         A defendant my be convicted of offenses other than those charged in the indictment if those are “lesser included offenses” (Burglary down to a trespass)

·         Called charge of the court

Closing Arguments

·         Counsel discusses the charge and how the evidence applies

Defensive Theories

·         Alibi – the defendant was not there – some courts instruct on alibi, others don’t

·         Insanity – Should consider insanity only if the prosecution meets all of the criminal elements, then look at the possibility of insanity – if they are insane then acquit

Raising a Matter for Jury Consideration

·         A jury needs to be instructed on defensive issues such as insanity only if they are “raised by the evidence” – insanity is fully supported by the defense

·         Jury instructions must make clear with who the burden of proof for defenses lies

Covering the Substance of the Law

·         Jurors are instructed as to the “law” and sometimes these instructions use vague language or are erroneous in content – might lead to reversal by higher courts or confusion by jurors

Argument of Counsel

·         Lawyers arguments are limited to the facts in evidence and substantive law

Appellate Review

·         Very few appellate procedures for the prosecution(double jeopardy), most actions are taken by defendants

·         After trial court, losing side may appeal to first appellate court, after that trial they may apply to be heard by the highest court of appeals

·         Convicted defendants can appeal on a variety of grounds, but most defendant appeals fall into one of two categories

o        Appellate consideration of evidence sufficiency – that was insufficient evidence to convict

§         If the appeals court finds this to be true the defendant is acquitted – no double jeopardy

§         If there is enough evidence the appellate judges will affirm judgment

o        Appellate review for trial error – most cases of appeal

§         Usually refers to mistakes in evidence admission, invalid searches, improper argument or comments by prosecutor

§         Harmless Rule: An error in a criminal trial does not justify reversal of the conviction if it is harmless

Chapter 2 – Criminalization Policy – Justification and function of criminalization

Two major competing theories of justification: retributionism and utilitarianism

·         Retributionism – one who violates the law(or offends morality) merits punishment regardless of if the pain upon the offender can be demonstrated to have any socially desirable effects upon anyone

o        No punishment is appropriate unless an evil has been done on someone’s free will

o        The punishment must be proportionate to the gravity of the offense

·         Utilitarianism – harm which will be done through punishment is justified only if it is outweighed by the good for society to conduct that punishment – general prevention occurs over all citizens by the enforcement of the law in specific cases


Chapter 3 – Constitutional Issues Regarding Criminalization and Punishment

Proportionality – Criminal liability and the penalty imposed should be proportional

  • Check out Chapter 12….read and re-read


The Penalty of Death

  • Furman v. Floridawanted to remove procedural concerns regarding the death penalty, some states abandoned the death penalty altogether, some others went to amended rules
  • The death penalty had been recognized long before the eighth amendment
  • Led 35 states to adopt statues that legalize the death penalty – upon support of society


Death Penalties are justified when they include:

  • Murder and,
  • One of two “aggravating circumstances”
    • It must apply only to a subclass of defendants – not every conviction is murder
    • Can not be unconstitutionally vague



  • The court is a little more lenient with imprisonment and the eighth amendment


Coker v. Georgia (CB1) Coker goes in to couples’ house and rapes woman…charged with death penalty

  • Proportional sentence Guaranteed by the 8th amendment


Harmelin v. Michigan (CB2) Harmelin was arrested with 627 grams of cocaine and given life in prison

Solem Test:       1. Check the sentences imposed on other criminals in the same jurisdiction.

                        2. Check the sentences imposed on other criminals in other jurisdictions.

  • Reaffirming there is a proportional guarantee by the 8th amendment
  • The court is not going to deal with the ability of the legislature to determine length of sentences, just proportion


Precision in Definition

The Supreme Court prohibits criminal convictions if a statute is “vague”

  • If it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute – it is not definite enough

Chicago v. Morales (CB3) Overbroad gangster loitering clause enacted by the city

  • If the words in a criminal statute are vague, uncertain they violate the due process clause
  • A statute can be vague on two prongs:
    • Notice of the law and information – IV
    • Arbitrary and Discretionary enforcement – V

Vagueness test under 14th due process

  • Procedural Due Process
    • Notice
      • Vagueness
        • Assures Understanding of Conduct Prohibited
        • AND
        • Discourages Arbitrary and Discretionary Enforcement


Need for a culpable Mental State

  • Criminal Liability has always had emphasis upon the subjective mental state – mens rea
  • They protect the innocent from the guilty
  • Unless it is a strict liability statute


Lambert v. California (CB4) Lady being arrested for not registering as per the felon registration law of CA

  • The constitutional requirement of a culpable mental state and notice is greater than the common law practice that ignorance is not a defense to prosecution
  • The Constitution requires a culpable mental state 


Montana v. Egelhoff – intoxication

  • This addressed the fact that intoxication can remove the mental state requirement for crimes
  • The supreme court found that it was ok for the statue to remove the mental state
  • This could have implications applied on other crimes in
  • The court was unable to reach a consensus on why this statute did not violate the 14th


Burdens of Proof

·         There are two types of burdens in criminal law

·         Burden of Production

§         Who must produce/bring/come forward – evidence in a trial

·         Burden of Persuasion

§         Persuasive evidence to some degree

·         Preponderance of the evidence – Take away property in court Level 1

·         Clear and Convincing – Take away a child Level II

·         Beyond a Reasonable Doubt – Take away your liberty Level III


In re Winship – Proof beyond a reasonable doubt applied, the reasons for B.A.R.D.

1.       Command respect in community

2.       Reduces the risk of convictions resting on factual error 

3.       Provides the presumption of innocence

4.       Impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue

5.       Makes an impact on a free society


Due process Requirement of Proof to the Jury Beyond a Reasonable Doubt

When you are taking away civil liberty, the government must be sure they are the right person

  • Proof Beyond a Reasonable doubt relies on the Prosecution

Affirmative Defenses

  • The government has decided that placing the burden of proving affirmative defenses and presenting evidence to support such rests on the defendant


    • Burden of proof rests with the defendant


    • Burden of proof rests with the government – beyond a reasonable doubt they weren’t entrapped


A crime consists of – Mens rea and actus reus(Act/Result/Attendant Circumstances) (Mental state and Physical Act)

Mens Rea – Culpable Mental State

Actus Reus –

1.       Act/Omission

2.       Result

3.       Attendant Circumstances


Another way to approach a crime is to analyze three parts:

  1. Identification and description of the elements of the offense – the charging instrument (four categories)
    1. The act – what was done by the accused
    2. The state of mind – the accused was aware of something at the time of the crime
    3. Results – something must have happened
    4. Attendant Circumstances – provide a basis for jurisdiction/severe penalty/etc
  2. Identifying any so-called defenses
    1. This amounts to disproving the state of mind required for the crime
  3. Consideration of defenses in the true sense
    1. They prevent or reduce liability despite proof of all elements of the offense(i.e. self defense)

There are two ways to define criminal law

  • Malum in se – a crime that everyone knows is wrong (i.e. murder, genocide, rape, etc) – crime against humanity
  • Malum prohibitum – this is against the law because we say it is (statutes)


14th Amendment

  • Due Process
  • Equal Protection
  • Privacy and Immunity


Procedural Due Process – the rights you possess

  • Notice
  • Hearing
  • Before a tribunal or judge that has jurisdiction to hear a case



  1. A person,
  2. with the intent to deceive
  3. knowledge of statement’s meaning
  4. makes a false statement
  5. under oath
  6. statement required under oath


U.S. v. Gaudin – Perjury case – nobody can reduce the burden of proof for the offense

  • Ensures that the state has to prove beyond a reasonable doubt EVERY element of the offense, the judge can no longer state some facts/elements are material fact
  • Trial judge eliminated the requirement that the state prove every element beyond a reasonable doubt – he went beyond the scope of his duties by lowering the state’s burden of proof


Defensive matters

TXPC 2.02 – Exception – Exempt – Negates the offense for a certain reason (State)

An exception must be disproved by the state in the indictment

TXPC 2.03 – Defense(i.e. Self Defense) (State/Defendant) – justification

            Defendant Has the burden of production to raise evidence that provides the defense

            State has the burden of persuasion beyond a reasonable doubt to negate that defense

TXPC 2.04 – Affirmative Defense (Defendant)

            Defendant have the burden to raise it and prove it

            Done by a preponderance of the evidence

TXPC 8.01 – Insanity

When you read 8.01 the first words are…It is an affirmative defense…this means it fits in the last category

TXPC 8.05 – Duress

The first words in that are…it is an affirmative defense…same as above


Mullaney v. Wilbur – homosexual advances – malice aforethought

  • Judge instructed the jury that an element of the offense is material fact….THAT IS WRONG
  • Malice aforethought can not be “presumed” from the killing of the defendant
  • Due process violation


Patterson v. New York (CB5) Guy charged with murder for killing a guy who was seeing his wife

  • They attempted to draw a link to Mullaney, but it is not quite the same because under Mullaney malice was presumed
  • You , the defendant can claim Mullaney all you want, but all they had to prove is that you intended to cause the death and that you caused the death(elements of the offense)
  • The trial judge correctly instructed the jury that they had to find the elements of the offense had been proven beyond a reasonable doubt by the state and that the defense could provide by a preponderance of the evidence that some emotional distress existed
  • As long as the judge stays away from the elements – things are ok
  • He didn’t lessen the state’s burden of proof


If there is an aggravating circumstance “like hate crime”

            The jury has to prove it


Chapter 4 General Principles of Criminal Liability: Intro Unit of Prosecution

  • Merger – where you have two crimes at the same time(robbery & kidnapping) the two crimes will not be found to constitute several convictable crimes, you prosecute the two together


Bell v. U.S.Guy kidnaps two women

  • The statute was unclear as to the units of prosecution
  • The judge favored the rule of lenity and he was acquitted


Multiple Victims

Multiple Locations

Multiple Times

If you have any of these you will probably have multiple units of prosecutions


Same offense

            Same statutory offense you can commit two murders at the same time…same statutory offense

                        But two different offenses in terms of victims(you’ll have two indictments)

                        Always look at the indictment to find out what offense (not statutory offense)


State v. Adel – guy arrested for pot in a convenience store…it’s on him and in his car

  • This case is DISTINGUISHABLE from Davis
  • The amount of prosecution was listed in the statute and they lumped the possessions together


In Re Davis (CB6) marijuana growing convictions, two different locations

  • Multiple locations will garner multiple indictments
  • They were looking at legislative intent in the statute


Continuing Offenses

  • If an offense is continuing and uninterrupted there will often be one unit of prosecution
    • Continuous operation of a brothel…one offense of operating a brothel


Two punishment amendments

            8th – Cruel and Unusual and Proportional Sentence to the Crime

            5th – Double Jeopardy Prevents

    • Retrial after acquittal
    • Retrial after conviction
    • Punishment – can’t punish them 2 times for the same offense


TXPC 3.01 – Criminal Episode

TXPC 3.02 – Joinder – A criminal episode may be joined and all crimes charged at the same time

TXPC 3.03 – Sentence – If you join the offenses and they are convicted sentences will run concurrently

TXPC 3.04 – Severance – You can sever the crimes, but the sentences might run concur. or consecutive


Chapter 5 – General Principles of Criminal Liability

A crime has four components:

            Mens Rea – Culpable Mental State

            Actus Reus – Act Omission/Result/Attendant Circumstances

Requirement of an act

  • There must be an identifiable conduct in the definition of a crime, and
  • The act (or omission) must be voluntary


The 8th and 14th Amendments require that crimes be drafted in terms of conduct

·         There is a requirement that the conduct be seen as “voluntary”


Robinson v. California (CB7) Guy arrested for being “addicted to narcotics”

·         A status can not be criminal conduct

·         Status does not lead to criminal liability/Conduct


Powell v. Texas (CB8) Arrested for Public Intoxication but D claimed he was chronic alcoholic

·         Findings of fact – things the trial judge writes down and decides it as fact(the specific thing did or did not occur)

·         The court does not agree with the finding of fact that says alcoholism is a disease

·         This is the only case that Marshall did not vote for the defendant in a 5-4 case

·         Status + Act(Location)

·         Different from Robinson because the statute actually spoke about an act instead of a status

·         Texas wants to punish public behavior that may create a substantial health and safety hazard with offends the moral and esthetic sensibilities of a large segment of the community.


Need for the act to be voluntary

·         This suggests that the accused must be conscious at the time of the activity

·         Unconsciousness or automatism may be used to remove intent from an action

o        Unconsciousness is not an AFFIRMATIVE DEFENSE

o        Consciousness must be proved beyond a reasonable doubt by the prosecution because the mens rea is an element of the offense

·         You can not be subject to criminal liability for something that is involuntary(cannot do)

·         Automatism – the state of a person who, though capable of action, is not conscious of what he is doing(no intent)


State v. Mercer (CB10) Murder by a man who is “unconscious” at the time of the killings

·         You have to have voluntary conduct to create criminal liability

·         The ultimate burden of proving consciousness, BARD, rests upon the prosecution

·         Inability to remember an event in and of itself cannot establish automatism, b/c it focuses on acts at time of conduct, not trial


TXPC 6.01(a) – A person commits an offense only if he voluntarily engages in conduct


Liability based on Failure to Act

An omission can create criminal liability in two situations:

  1. When the statute spells out the particular omission – easy
  2. When a crime requires proof that the accused caused some harmful and prohibited result – much harder


TXPC 6.01(c) – A person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense


There are situations were an omission can create criminal liability


Kuntz v. Montana 13th Judicial District (CB11) Lady stabs guy in the chest during a fight and leaves him

·         There is a duty to render aid within a person relationship

·         A person has the duty to preserve themselves first, but the duty to act and assist the person may be revived

·         Omission can be an act


The 14th amendment acts as a big arm in applying the Bill of Rights to the states




Defining the Act Required for Particular Crimes

  1. The act defines the line between criminal and non criminal behavior – without the act there is no criminal liability
  2. The act of the crime serves the basis for calculating the number of offenses  committed by a course of conduct
  3. The act required serves as a basis for distinguishing the offense at issue from others that may be related to it



State v. Cross (CB12) Guy found DWI in a car that is running, not moving

  • Operated vehicle ß- act in DWI
  • DWI is an anticipatory crime – they anticipate something bad is going to happen
  • No culpable mental state
  • Physical control of a vehicle is often disputed – it depends on the weighing of facts, not a set test


Act Required by Property Offenses

  • Two types of wrongful interference were: wrongful acquisition of the property and wrongful dealing with the property of another after it had been legitimately acquired


C.L. LARCENY – Trespassory taking and carrying away/of the property of another/with intent to steal

  • It changed to include where a person exercised control over property inconsistent with the continued rights of the owner
  • The intent to steal meant – the intent to permanently deprive the owner of their property
  • If there are co-owners neither one can be charged with larceny


Welch v. Commonwealth (CB14) Guy taking TVs from Lowes Home Improvement Warehouse

  • Taking property ß- act in Theft
  • There must be a taking to achieve a theft, taking is to lay hold of, seize or grasp it with the hands or otherwise
  • TPC 31.03


Commonwealth v. Reske (CB15) Guy sells trucks to mentally retarded guy

  • False Statement ß- act in theft by false pretenses


Legitimately Acquired Property

  • Traditionally covered by the crime of embezzlement

C.L. Embezzlement – The actor in lawful possession of another’s property/fraudulently convert it

  • Convert means to act upon the property in a manner seriously inconsistent with the trust relationship underlying the owner’s willing transfer of possession(Police officer using patrol unit to steal lawnmower)


Commonwealth v. Moreton (CB16) Guy selling fish to consignment guy

  • Converted the property of another, but the court found that he didn’t (even though the dissent had the best case)
  • You can not place someone in jail for fail to pay a debt


People v. Brown (CB17) Guy who crashes co-owned car into pole

  • Destroyed vehicle ß- act in CRIMIS
  • Court defines Ownership in terms of Theft/Larceny, UUMV, and CRIMIS
  • Use vehicle ß- act in UUMV
  • TX CRIMIS 28.05


Aggravated Property Offenses: Robbery and Extortion

C.L. Robbery – A larceny aggravated by the fact that the taking of the property is from the person or in the presence of the owner by the use or the threatened imminent use of force

State v. Preston (CB18) Robbery of a convenience store with cigarettes

  • Assault ß- act in Robbery…theft + assault
  • Defendant wanted another charge, larceny/theft because of the two separate acts
  • Voir Dire – picking the jury & witness testimony(take the witness aside and test their ability to testify – laying a foundation) (voir dire has two different meanings in criminal law)


State v. Moore (256) Lady threatened to give up keys to car

  • There has to be an objective state of mind
  • Welch v. State 880 S.W.2d 225, 226 – victim must be placed in fear in order for robbery by threat, the victim’s fear must arise from conduct of the perpetrator


State v. Harrington (CB19) Lawyer tries to get money in a divorce proceeding by extortion

  • Threat to obtain property ß- act in extortion
  • Robbery is only different from extortion because it is immediate – extortion is in the future
  • TX PC 31.02 – it consolidates all of the old theft cases into 31.03


Act Required by Offenses Directed at the Habitation: Burglary and Arson

C.L. Burglary – A breaking/and entering of/the dwelling/of another/at night/with the intent to commit a felony within

  • Dwelling was anything within the cartilage of the property
  • Modern statutes have expanded it greatly, cars/coin-op machines/businesses
  • Modern statutes also have now included any felony or theft

People v. Davis (CB20) Guy passes check into a cashing facility

  • Enter property ß- act in burglary
  • The penal code defines words as per code/chapter/section…if the legislature decides to do such


C.L. Arson – Willful and malicious/burning of the/dwelling house/of another person

  • “Burning” was the burning of any part of the structure – Texas much different

United States v. Jane Doe (CB21) Girls sets fire to paper towel which sets school on fire

  • Deals a lot with mens rea, the act is different
  • Start a fire or cause explosion ß- act in arson
  • PC 28.02 – as soon as you light the match with the intent, you have arson…much more aggressive than the example in the book


Act Required by Offenses Directed at Personal Security: Assault

C.L. Assault – Difficult to define – it was either a failed battery or the placing of another in fear of battery

United States v. McKinney (CB22) A lady threatens to kill another and gets in her car

  • Threat ß- the act, but don’t forget the apprehension of bodily harm for assault


C.L. Kidnapping – The forcible asportation/of a person/from their own country/to another

State v. Dixon (CB23) Kidnapping in connection with other offenses, sexasslt etc.

  • Movement/Confinement ß- the acts in kidnapping
  • The movement of the victim was not part of the other acts
  • Texas you have restraint and kidnapping, restrain v. abduct


Hines v. State agrees with the incidental movement…it requires more than temporary confinement or slight movement but that was overruled, and says that you can have kidnapping and rape and other crimes and there is no specific distance you have to move them


Chapter 6 – General Principles of Criminal Liability: The state of Mind

  • K and Torts – Reasonable and prudent person might have done – objective state of mind
  • Criminal – We care about the subjective state of mind
  • Specific Intent – What has to be in someone’s mind at the time of the “act,” intentional or knowing
  • General Intent – reckless or negligent
  • Strict Liability – no culpable mental state needed


Subjective state of mind is harder to prove and therefore is required when looking at taking away rights and liberties

  • Criminal law is the government trying to remove the rights and freedoms of individual people
  • It’s an element that must be proven BARD by the state
  • The statute will provide the state of mind required


General Principle of Mens Rea

  • State of mind = Mens rea = Culpable Mental State = Scienter
  • Without a culpable mental state you don’t have a crime
  • If the statute does not have a CMS a CMS of reckless will apply TXPC 6.03
  • If the CMS is higher than the one required, then it can be assumed that the lower one was present
  • Reckless it the default CMS





Criminal Negligence – is not necessarily a mens rea – is very rare to see used

  • The very lowest level of liability and deals with objective view and uses the ordinary person as the standard
  • You don’t have many crimes that require negligence, it does not fit with theories of punishment


State v. Andrews (CB24) Person stopped by P.D. who had a loaded gun. 

  • There is no presumption of innocence on appeal…the court will presume the person is guilty
  • The statute in this case does not have a CMS, and you have to have a CMS to have a crime
  • You have to have a CMS on the element that changes conduct from innocent to criminal
  • You can not intentionally remain ignorant of a fact, this deliberate avoidance does not allow defenses


State v. Cabrera (CB25) Guy takes bag of merchandise not knowing the value of the merchandise

  • Stipulate – enter into agreement…basic agreement on factual stuff – property, etc.
  • In pari material – the specific rules over the general, charge a person with the specific crime over the gen.
  • Sometimes a state can require a culpable mental state for punishment, but this is an isolated case
  • TX: A person, with the intent to deprive, appropriates the property of another, w/o Effective Consent
  • Different in drug offenses where know


Awareness of the Law creating and Defining the Offense

  • Sometimes there is a requirement that goes past demands regarding knowledge of facts

Ratzlaf v. U.S. (CB26) Guy loses a bunch of money on blackjack.  Structuring, under $10,000.

  • He was aware of the law, he has to know that his conduct was illegal
  • Def Lawyer added a culpable mental state to the “Willful” knowledge that the statute was illegal


“Specific Intents” and the States of Mind Required by the Property Offenses

  • Often the Intent to steal regards the intent to deprive the owner of their property

State v. Gordon (CB27) Robbery and the intent to deprive owner

·         You must make some affirmative act to return the property in order to have a defense


State v. Joy (CB28) Guy who embezzles money with intent to repay.  Embezzlement doesn’t care about permanent.

  • Embezzlement only cares about intent at the time


State of Mind Less than “General Intent”: The Strict Liability Offenses

  • Offenses that require no CMS or that relax the general rule and require awareness of less than all nonmental elements of the crime are labeled “strict liability.”
  • Sometimes strict liability is necessary to keep people from manufacturing mistake of fact defenses

Staples v. U.S. (CB29) Guy has an AR-15, modified for automacy, seized by the ATF.  Convicted for not registering.

  • Removal of a culpable mental state is a “strict liability” crime
  • This is not a strict liability decision


Johnson v. State – the defendant did not need to know the child was a child


“Defenses” Consisting of “Disproof” of State of Mind

  • It provides defendants the opportunities to persuade judges and juries that the required CMS did not exist
  • Mistake of Fact can negate criminal intent
  • Mistake of Law is generally held not to excuse the commission of an offense
  • In mistake of fact the court must inquire into:

1.      Whether, as a matter of logic an evidence, the accused’s claimed mistake would have been inconsistent with the state of mind required by the crime charged; and

2.      The allocation of the burdens of raising and proving the issues presented


Mistake of fact and mistake of law-2.04 Model Penal Code

  • It negates the culpable mental state and brings in other mental states – murder v. crim neg homicide
  • TXPC Mistake of Fact – 8.02 – Defense
  • TXPC Mistake of Law – Affirmative Defense
  • Policy: You don’t want to punish someone for an honest mistake of fact or of law, you will never reach the goals that you have for prescribing crimes and punishing people


Wilson v. Tard (CB30) Mistake of fact in accidental shooting, guys using heroin.

  • Defendant only has the burden of producing the defense, and the state has to disprove it…they now have to prove recklessness and they have to disprove the “mistake of fact” defense
  • New Jersey is trying to say that whenever you point a gun it is reckless, the U.S. says, you’re wrong – they only have to raise the issue “persuasion”


State v. Sexton (CB31) Mistake of fact and accidental shooting, boys in fight. 

  • Don’t ask “multifarious questions” – asking three questions in one(Wit. Does not know how to know)
  • Two components of Mistake of fact defense in N.J.
    • Material Elements
    • Whether it is a defense
  • The legislature went through the MPC and didn’t organize the NJ PC – CASES SUCK – KISS MY ASS
  • Remember they could charge someone with the highest degree supported by the facts – in this case murder


Mistake of Law

  • Malum prohibitum – it is only wrong to violate the law because congress says it is
  • Generally the Prosecution does not have to prove the D knew about the law
  • Common Law – ignorance or mistake of law is no excuse
  • The goals of punishment are not met because the person who makes a mistake does not need to be punish
  • If someone is advised as to the law by someone who should know about a particular area of law, they can raise mistake of law as a defense(picketers given permission to picket pursuant to the chief of police)

Cheek v. United States (CB32) IRS Tax claims

  • Willful mental state is seen a lot in finances and monetary areas of codes
  • Mistake of law – you have a right to put on this defense – per the 6th amendment
  • Just because you disagree with the law, doesn’t mean you have a mistake of law


Ostrosky v. State (CB33) Alaskan fisherman who has a constitutional disagreement with a fishing act.

  • Mistake of law is an affirmative defense – mistake of fact is a defense
  • TXPC Definition 8.03 – Mistake of law


Claim of Right

  • A doctrine when a person has a bona fide belief he is the owner of the property that he is taking from someone, this will negate the culpable mental state in many theft cases

Bartlett v. State (409) Trespasser goes onto property of his friend to “steal” a truck that he believed was his

  • He used a claim of right defense and the court found that he could raise this as a defense
  • The prosecution has the burden of proof to negate this defense by BARD
  • Bartlett could not have had a CMS when he took the truck when he believed that he had the right to go and repossess the truck
  • Claim of right is not a widely recognized defense
  • POLICY: The law does not like the idea of self help
  • Claim of right can also apply to trespass cases
  • TEXAS LAW: Recognizes the claim of right defense “a conviction can not be upheld if the ownership of the property is disputed between the victim and suspect” (exceptions: divorce) Bokor 114 S.W.3d 558


INTOXICATION – Not test material

  • Two types:
    • Voluntary – No remedy…it is no defense to the offense
      • Policy: The D was aware at the beginning of the drinking he was going to end up intox.
    • Involuntary – It is a defense to prosecution



Weaver v. State (419) Guy takes acid, freaks out and kills his girlfriend

  • Raised voluntary intoxication offense b/c Indiana had this as a defense, but the Sup Ct reversed and said it was not a defense

TXPC 8.04 – Voluntary Intoxication is not a defense, but it can factor in during punishment; Invol. Intox. is an affirmative defense and you have to raise it through the vehicle of insanity Mendenhall 77 S.W.3d 815


Settled insanity doctrine – insanity due to prolonged drug use…pretty much not recognized today


Montana v. Egelhoff (pretty useless case because of judge split)

  • All state laws making voluntary intoxication irrelevant to criminal guilt are acceptable under the federal const.


Chapter 7 – Murder

C.L. Murder – Murder and nothin else – it used to be a capital offense and you would get the death penalty

Benefit of clergy – if you were part of the clergy you would be tried in the church courts (all you had to do was pass the clergy test – literacy) 


            Enforcement of Justice

            Self Defense


The monarchy removed the most heinous cases and tried them under murder and the rest were left in the ecclesiastical church and called manslaughter – covered all homicides except the most heinous(with prepense-premeditated,malice aforethought)

Manslaughter evolved into two types:

  • Voluntary – more serious – more severe penalty
  • Involuntary


Traditional approach to murder (437) California Traditional Approach

  • Murder is with malice aforethought – 1st degree
  • All other types 2nd degree


Model Penal Code (Texas is based on this format)

  • Introduces Deadly weapon
  • Murder/Manslaughter/Negligent Homicide


TXPC 19 Murder and the new 19.06 exception(unborn child)


When does a person die?  - Causation issue, you usually need a cessation of a heartbeat

  • There is no longer a time limit on when a person dies – the 1 year and a day rule is gone, this is not denial of due process
  • C.L. Adhered to the 1 year death rule
  • Some states accept a brain death as death of a person


Malice Aforethought - prepense

  • Initially thought to be the intention to kill another that was not justified or mitigated in some way
  • Over the years malice aforethought was used to distinguish murder from manslaughter
  • Now it is a term of art, replaced by CMS
  • Four types of killings:

1.       Malicious where the perpetrator acts with the specific intent to kill

2.       Malicious where the perpetrator has specific intent to inflict serious bodily harm

3.       Malice aforethought when an act may involve such a wanton and willful disregard of an unreasonable human risk, even if there is not actual intent to kill or injure

4.       Malice existed when a killing occurred in the course of intentional commission of a felony – felony murder rule




Depraved indifference Murder (Depraved Mind and Depraved Heart)

People v. Roe (CB34) Kid points shotgun at friend and pulls trigger.  Charged with depraved heart murder.

·         Depraved indifference has two components, subjective and objective

·         Subjective component is what he thought(knowingly) and felt and objective is what he did(action, reckless)

·         Must prove that he was subjectively reckless

·         What do you have to prove objectively - an objective assessment of the degree of risk presented by a defendant’s reckless conduct 

·         You’re pointing a gun you know is loaded – so there’s a 50-50 chance you’ll kill this kid and Roe knows it

·         He was undoubtedly reckless, but was the degree of risk enough to make it a first degree offense

·         A drive by shooting – three or four kids in a car and they’re going out and shooting at people.  What would you charge someone with?  You can always charge them with murder.  This is known as SBI murder (serious bodily injury)

·         In Texas and someone is pointing a gun at someone and then pulls the trigger you charge him with murder 

·         What about this case in Texas – a defense attorney would try to argue reckless or criminal negligence

·         The state would argue murder

·         Did he intend to indulge in the conduct, yes – did he intent the result, no

·         Reckless – did he consciously ignore the potential risks – yes


Premeditated and/or Deliberate Killings: First Degree Murder

  • Commonly known as premeditated murder
  • The murder with the highest CMS deserve the harshest punishment
  • 1st Degree murder required: Willfulness, Deliberation, and Premeditation – The big picture – non-testable
    • Willfulness – the intent to kill
    • Deliberation – determining upon a course of action to kill as a result of thought
    • Premeditation – is a design, a determination to kill, distinctly formed in the mind by the time of the killing
  • Sometimes the act itself can be enough to warrant capital punishment
  • “Felled Victim Theory” – when numerous wounds are inflicted, the D has the opportunity to premeditate from one shot to the next
  • Some courts look at: the D’s knowledge that he will kill another person existed before the killing long enough to permit relfection


State v. Bingham (460) Murdered & raped retarded woman.  Death by strangulation.  Was the amount of time sufficient to prove premeditation. 

  • Manual strangulation is not enough evidence to prove premeditation
  • You have to prove that they premeditated, not merely that they had time to premeditate
  • Defense cases:
  • Smith – Choking son underwater – Circumstantial evidence à you can draw a reasonable inference
  • Harris – Choking with power cord à he choked her after he beat her à premeditation
  • Gaines – Choking à he choked her after he hit her in the head with a rock à premeditation
  • State Cases:
  • Griffith – children hit ball against his door takes ball away à parents come to door and he kills them
  • Luoma – guy took lady to a place and killed her à he proved intent and not premeditation
  • There is a strong argument for premeditation, but the court goes the other way
  • What leads up to the incident can be premeditation, but after the fact, it’s merely an afterthought
  • Premeditation doesn’t have a hard line definition
  • Premeditation is above intentionally – if you can prove it…you’ve got intent

Death Eligible Murder – Capital Murder

  • TXPC 19.03 – must be intentionally and knowingly causing the death of another + attendant circumstances


Mitigated Killings: Voluntary Manslaughter

  • Sudden and provoked attack(man finding wife in bed w/other man)
  • Provoked by some sudden, violent provocation
    • Words are not enough
    • There is usually no “cooling off” period
  • C.L. Manslaughter – Killing will be reduced from murder to manslaughter if the facts show “adequate provocation”

State v. Person (476) Guy kills ex-girlfriend after he finds her with a man, but doesn’t do it immediately

  • In order to use EED(extreme emotional disturbance):
    • Offense was committed under the influence of EED
    • There was a reasonable explanation or excuse for the D’s EED
  • The court says that EED is an issue to be left to the trier of fact
  • This guy says one thing on direct examination and says another thing on cross examination, does he have the right to have his defense instructed to the jury?  This court says yes:
    • Regardless of whatever the defense is and however weak it is, the defendant can raise the issue and prove it as a defense
    • Policy: A fundamental element of due process is the right of a defendant charged with a crime to establish a defense


  • TXPC 19.02(d) – sudden passion at the punishment phase, introduced to lower the penalty
    • Done under sudden passion and adequate cause
    • Sudden passion is treated as a culpable mental state in Texas, it modifies Inent/Knowing Moore v. State 969 S.W.2d 4, 10 (CCA 1998)
  • Sudden passion has two parts:

1.       Sudden passion itself has a subjective state of mind

2.       Adequate cause is an objective test

  • You see sudden passion when self-defense was not found in the trial phase
  • Can provocation for sudden passion come from someone else besides the victim
    • Texas law-there must be direct provocation by the victim or someone acting with the victim at the time of the killing Merchant 810 S.W.2d 305, 310
  • Texas-you have to be provoked at the time of the killing…no delayed provocation action-it’s not sudden


Reckless and Negligent Killings: Involuntary Manslaughter and Negligent Homicide

  • Homicides that are done without the culpable mental state, these are usually done unintentionally or accidentally
  • Substantial risk does not have to be “more likely than not to occur” – Six shooter example…in actuality 16.5% chance, not 50%
  • Justifiable risk – a patient will die (100%) if you don’t give him a treatment that has a 75% chance of death…this treatment would be justifiable


Lofthouse v. Commonwealth (CB35) Heroin and cocaine supplier

  • State said…as a matter of law delivery of drugs that were vol. taken is liability – goes against Gaudin
  • Sub judice – the case before the court
  • Failure to perceive the risk that can result from his actions
  • Was it foreseeable? (His death?)
    • If it happened in the past – it is foreseeable
      • Randolph – knew the heroin was bad and it had killed someone in the past
      • Bowden – knew the defendant had a certain tolerance level and only gave him as much as he had before, was not foreseeable
  • Texas: RECKLESS – aware of a risk and disregards it, and that disregarding it is a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances
  • Texas: CRIMINAL NEGLIGENCE – he should be aware of a risk, but he’s not
  • Don’t have involuntary manslaughter in Texas, just manslaughter.
  • The purposes of punishment are that you are trying to deter the specific person from doing the act again, and to keep society from doing the crime as well


Felony Murder and Misdemeanor Manslaughter

  • Felony murder – killing someone in the commission of a felony
    • Does NOT require a culpable mental state that is related to the death
    • The C.M.S. is imputed by the felony to the homicide
    • Policy: Deterrent for committing felonies-not good argument.  A robbery that ends in death is more closely associated to murder than to robbery. 
    • This is an exception to the CMS rule from Lambert v. California  
  • Misdemeanor manslaughter – cause the death of someone when you are committing a misd.-NOT TEST

Stouffer v. State (CB36) Murder and kidnapping, felony murder?

  • Pellucid – clearly
  • The court does not hold this as a valid felony murder case because there was no connection between the kidnapping and the homicide
  • Intent was just to scare him, not to commit the murder


  • The first time this guy was abducted it was a kidnapping
  • There was evidence of an intent to kidnap and then beat or kill him. 
  • Remember the intent (C.M.S.) MUST be applied to the felony.  In this case there was intent to KIDNAP and the subsequent MURDER received the C.M.S. of the kidnapping.
  • You want to see a causal connection between the felony and the homicide without a extraordinary intervening event that breaks the causal link


  • Felony murder liability applies where the initial felony and the accidental killing are parts of one continuous transaction and are closely related in point of time, place and causal connection
  • Merger Rule – In felony murder the conduct which constitutes the felony must be ‘separate from the acts of the personal violence which constitute a necessary part of the homicide itself’


Dangerous crimes and the felony murder rule

  • Dangerous per se – List of felonies
  • Dangerous based on the circumstances – More case-by-case application
  • Felony murder uses a little bit of common sense – if you are acting in a way at the time of the felony that is inherently dangerous


People v. Morgan (517) Grandson shoots grandma and grandpa

  • The predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself. 
  • You can not “bootstrap” an agg battery(felony) or a agg discharge of gun(felony) into the murder.  There must be some other felony that is not included in the offense of homicide(lesser included offenses). 
  • The conduct must be independent from the conduct that kills. 


TXPC 19.02 b(2) & (3) – Texas felony murder rule


State v. Sophophone (522) Guy killed by police officer during the flight from a burglary.  D charged with his murder.

  • Agency approach – transferred intent, the D must be directly responsible for the deaths “your acts are my acts”
  • Proximate Cause Approach – negligence, any death that occurs will be murder
  • Does the killing of a third party not directly related to the defendant’s actions meet the elements of the felony murder rule?
  • Kansas adopts the agency approach


Texas has tried to regulate felony murder three ways

  • Manslaughter is not applicable as the felony
  • Regardless of the underlying felony the D must commit an act that is clearly dangerous to human life
  • The act clearly dangerous to human life must be the specific act that causes the death


Lassaint v. State Dope case

  • Possession of controlled substance, when does someone possess contraband?
  • Possession requires: D exercised care custody control of the contraband; they had knowledge of the substance in their possession
  • Affirmative links doctrine-the series of 17 tests to see if you have logical inference that the defendant possessed the controlled substance
  • Mere presence is not enough to convict someone


CHAPTER 8 – Causation

  • Causation is usually overwhelmingly decided in favor of the prosecution – who also carries the burden of proof
  • Causation consists of two distinct sub-elements, must prove both


    • Cause in Fact – “but for” the D’s conduct, the harm would not have occurred, OR if you have two possible sources of harm but for is impossible and you must prove that the D’s conduct was the “substantial factor” in bringing about the harm
    • Legal cause(proximate cause) – if there were no intervening causes, direct cause
    • Intervening Causation – tests for determining if an event is a superseding cause
      • Voluntary human actions and abnormal natural events are superseding causes
      • The agency must be independent
      • The agency must have intervened in the events after the defendant’s actions
      • The agency must not have been intended by, foreseen by, or foreseeable to the defendant

People v. Stewart (542) Guy stabbed, he goes to hospital and is operated on, the doctors then operate on a hernia that he has as well, but there is an issue of causation, as what really caused the death.

  • He could have died from 6 different causes
  • Sometimes the act of causing the result does not necessarily require a culpable mental state
  • There was no culpable mental state required in the result in this case
  • Cause in fact (but for) – the result would not have occurred “but for” the conduct (then go to next test)
    • When two actions occur that would both cause the harm independently, the first actor will probably meet the “substantial factor” test and be held guilty
    • Hasten death – shooting a guy jumping off of building
    • “But for” & Natural and probable consequences
  • Legal cause(proximate cause)
    • You can have all the intervening agencies you want and still have caused the death
    • Intervening Causation – if something comes in and becomes the superseding cause of death(intervening to a max) this breaks the proximate causation chain (act as a defense)
      • Voluntary human actions and abnormal natural events
      • It must be independent of the D’s conduct
      • It must intervene after the D’s actions – not from a pre-existing condition
      • The action must not have been intended by, foreseen by, or foreseeable to the defendant
        • Simple Negligence – foreseeable             Gross Negligence – Not foreseeable
      • Some courts: the cause become the sole direct or immediate cause of the death
  • Burden of proof is on the prosecution to show the conduct led to the result
  • Coroners – homicide means that the person’s death was caused by someone else…no self defense, no duress
  • The guy’s death was found to be the result of the Dr.’s Gross Negligence. 


State v. Witherspoon (558) Gun battle instigated in a busy area by D., lady killed by someone else.

  • Issue: Even though he did not fire the fatal shot could the jury have concluded that his conduct was reckless enough to have caused an innocent bystanders death?
  • Holding: Defendant is as responsible for victim’s death as the shooter and “but for” D’s reckless behavior, before and during the gun fight, victim would not have died.
  • As long as there is no intervening event and the outcome is foreseeable by the D, they can be held to have caused the result to someone else. 


Bullock v. State (564) DWI accident where D collided with a car that ran a red light. 

  • Issue: Was the jury properly instructed regarding causation?
  • Holding: No, they did not receive any instruction regarding his awareness that someone might run a red light when he is driving down the road. 
  • The Defendant must be aware of the potential risk/result in order for causation to apply
  • Plain error – An error(that is really bad) that can be rejected without an objection by one party
  • TXPC 6.04


CHAPTER 9 – Attendant Circumstances and Sexual Assault

  • In some cases you have something other than an act, CMS, Result – these are attendant circumstances
  • It is an additional element that the state has to prove BARD
  • The authors have used sexual crimes to deal with attendant circumstances
  • A major issue in sexual assault law is whether the act requirement should include some use of force beyond what is necessary to perform the sexual conduct


Rape Laws

  • Used to be based in property law
  • In order to show that any conduct was non-consensual, you had to look at the victim’s state of mind
  • Resistance was thought to be the outward manifestation of non-consent
  • Many jurisdictions said she had to resist to the utmost
  • These prosecutions turned more upon the response of the woman, rather than upon the man and his conduct
  • Only if she resisted to prove he had to use more force than necessary would his conduct be criminal
  • They used to have to introduce
    • Sometimes the judge instructed the jury about how easy rape can be made up
    • Some states where the victim needed to outcry
    • A man could not rape his wife
  • In the 1970’s rape started to change from a sexual offense to an assaultive approach
  • Have shifted from a focus on the victims conduct to a more intensive look at the defendant’s actions
  • Victim no longer had the burden of proving consent – it went to the defendant
  • Rape Shield Law – you can not question a woman about her prior sexual activities unless there is a showing
  • Rape Trauma Syndrome – Actions immediately following a rape
  • These changes turned rape from 4 elements to many pages of definitions of the crime
  • C.L. Rape – “Carnal Knowledge of a woman against her will”


Lack of Consent and Awareness of Nonconsent Under Traditional Rape Law

  • Traditional rape required both lack of consent and accomplishment of the sexual act by force or threats
  • Courts are now troubled with 1) whether the elements of the crime include awareness of nonconsent and, 2) the proper significance to be given to evidence that the accused mistakenly believed the victim consented


Commonwealth v. Lopez (583) Rape of 17 year old in woods

  • Rape is committed by 1)Sexual intercourse 2) by force or threat of force and against the will of the Vic.
    • 2) (1)by means of physical force, nonphysical, constructive force, or threats of bodily harm, and at the time of penetration there was no consent
  • He tried to raise mistake of fact as a defense saying “I thought she consented”
  • Mistake of Fact is not a defense available to defendants in rape cases
  • You can use mistake of fact as a defense to a particular element of the crime, but in this case consent was not an element
  • There is no need for a CMS to prove sexasalt
  • Lack of consent is the attendant circumstance


Effectiveness of Consent or Submission


  • Consent given in response to violence or threats of violence will be ineffective
  • Other types of coercion have not been found to equal threats of violence or harm
  • The state has to prove that there was no consent, they don’t have to prove that there was a particular intent by the D
  • Many states have enacted statutes which extend the traditional definition of rape to include sexual intercourse achieved by fraud or impersonation

State v. Thompson (590) Short case regarding coercion and force in sexual assault

  • The court follows the law to show the injustice in the statute to make the Legislature realize and change the law

State v. McKnight (590) Gay sexual assault

  • The attacker used coercion and extortion to get him to perform acts
  • They did stretch the statute to get to the holding



People v. Hough (591) Twin brother has sex with wife of his brother

  • Did this lady have a lack of consent?  No
  • His actions did not fall within the attendant circumstances on consent
  • Jeopardy attaches when the jury is impaneled and sworn in
  • Legal consent can not be given under fraud by fact


Mistaken Belief Regarding Age in Statutory Rape

  • Statutory rape has traditionally been a strict liability offense they want to dissuade the exploitation of young persons as much as possible
  • The legislature has drawn the line and says…if they are below this age – you are guilty NO EXCEPTIONS


Redefining Rape in Terms of Conduct

  • Reforms have sometimes omitted any reference to lack of consent – they rely on the conduct that must be proved as establishing liability

Commonwealth v. Berkowitz (597) College Students having dorm room fun

  • There was no forcible compulsion – she made no real attempts to escape, only no was used
  • Verbal cues as to lack of consent is only good when combined with other evidence displaying a lack of consent
  • Resistance is not required in this case, but that was not the issue in question
  • There was not a presence of physical force in this case which was required by statute
  • Consent was not in the statute


TEXAS – 22.011 Sexual Assault

  • Consent is not necessary, any penetration of anything with anything
  • Consent is not effective under:
    • Threat or usage of violence or force;
    • Victim is unable to consent and there is a culpable mental state of the offender
  • With a child is essentially the same, except there is spousal immunity



  • Partial completed or imperfectly formed; just begun crimes

Preparatory Crimes

  • Those who embark on a course of conduct directed towards one of these carefully defined crimes may incur criminal liability for conduct before that required by the definition of the crime
  • Three offenses – Attempt, Solicitation, Conspiracy
  • Functions of the penal law to punish these crimes - POLICY
  1. When a person is seriously dedicated to commission of a crime there is a firm legal basis for the intervention of the law enforcement to prevent its consummation.
  2. Conduct designed to cause or end in criminal activity indicates that the actor is disposed towards such activity.
  3. When the actor’s failure to commit the offense is due to a fortuity(luck) his exculpation on that ground would involve inequality of treatment that would shock the common sense of justice.


  • Consists of two basic requirements:
    • Culpable Mental State – the intent to commit the substantive offense
    • Act or conduct element – some act going far enough towards commission or going far enough beyond forming the intent
  • In addition to the criminal purpose an act must be a substantial step in a course of conduct designed to accomplish a criminal result, and that it be strongly corroborative of criminal purpose in order for it to constitute such a substantial step.
    • It punishes stuff that has already been done; and
    • There is no requirement for the state to prove that the defendant would have desisted
  • You can’t withdraw from attempt, only commission of the crime
  • The key is to distinguish acts from mere preparation
  • Some jurisdictions look at the last proximate acts(arson=gas+matches), others penalize at the first acts(when you buy the matches)
  • The CMS can not be reckless or negligence – no attempt to commit a strict liability offense
  • TXPC 15.01 – an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended

State v. Reeves (623) Poisoned coffee and attempted murder – materials(instrument of crime) can show attempt

  • Ten. Revised law made that any substantial step taken in the commission of a crime would constitute attempt
  • Their actions of bringing poison to school and standing by the coffee was enough of a substantial step
  • There is a fine line in some offenses between the act and the attempt of the act
  • Distinguishing between mere preparation and the act itself in a principled manner is a difficult if not impossible task


Smith v. State (630) Guy tries to rape boys in the woods – Abandonment is a defense to attempt

  • You can try to abandon an attempt crime after a substantial step, but only voluntarily – not to avoid detection or other extrinsic factors



  • This is a common defense in attempt crimes – saying that the commission was impossible


People v. Thousand (632) Attempted dist. of porno to a police officer acting like an underage girl – impossibility

  • Impossibility is a defense to attempt crimes; two types (NOT A DEFENSE IN TEXAS)
    • Factual impossibility – try to shoot someone with an unloaded gun – when the D when the D’s intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control – not too common
    • Legal Impossibility – two types
      • Pure legal impossibility – exists if the criminal law does not prohibit D’s conduct or the result that she has sought to achieve
      • Hybrid legal impossibility – exists if the D’s goal was illegal, but commission of the offense was impossible due to a factual mistake by her regarding the legal status of some factor relevant to her conduct
  • Obiter dictum – words or phrases part of the judicial opinion that are not essential to the case



  • Allows P.D. to intervene sooner than you can for attempt
  • Because of this it has two strong limitations
    • Extremely serious offenses(cap, 1st degree)
    • Some level of corroboration
  • TXPC 15.03 – He commands, requests, or attempts to induce another to engage in specific conduct that would constitute the felony(cap/1st degree), the testimony must be corroborated
  • TXPC 15.05 – You can not attempt to (attempt, solicit, or conspire) preparatory offenses

State v. Anderson (644) Attorney soliciting drugs as a payment, but in actuality he didn’t solicit.

  • Anderson was the solicitee in this case, he didn’t instigate the offer to accept drugs as payment
  • Anderson could have been charged with possession of a controlled substance, more appropriate


Elements of Liability in Conspiracy Law

  • Agreement between or among the participants + necessary intent or state of mind + overt act
  • Agreement
    • Agreement permits triers of fact to infer, from circumstantial as well as direct evidence, that the defendant knowingly agreed to join one or more others in a concerted effort to bring about a common end
    • It is dangerous because you may convict innocent persons
    • Mental states(2): State to agree, Intent to effectuate the offense that lies at the end of the consp.
    • A conditional agreement can be conspiracy
  • State of Mind
    • D must be aware of those matter necessary to make the contemplated conduct the criminal offense the defendant is charged with conspiring to commit
  • AT COMMON LAW – No more than an overt act must have been completed
  • Overt act is necessary in some jurisdictions – gives P.D. chance to intervene before crime is committed
    • It does not have to be criminal, just enough to manifest that the conspiracy is working
    • Even an insignificant act can suffice(buying stamp for ransom note)
    • One more way to overcome the danger of misidentification which is inherent in the vagueness of conspiracy
    • “Substantial step” test in conspiracy would also manifest that the conspiracy is at work and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation
    • Venue can be found anywhere an overt act occurred, or S.O.L. can be lengthened by Overt act
    • Conversations are not an overt act, payment is not an overt act as well
  • Policy: Conspiracy is very dangerous because you have a lot of people who want to commit a crime, and once that agreement has been reached it is hard to back out of an agreement with a lot of people
  • You can have one conspiracy to commit multiple offenses
  • TXPC 15.02 – He agrees with 1+ persons, that they will engage in conduct that would constitute the offense; and one or more of them performs an overt act in pursuance of the agreement
    • Agreement + Overt Act = Conspiracy
    • Shoots at someone, but misses = Attempt
    • Asking someone to kill someone else and they refuse = Solicitation

U.S. v. Valigura (651) Military case where a private conspired with a L.E. Officer for delivery of drugs, but not for criminal purposes. 

  • Federal law – conspiracy requires 2 people who wish to accomplish the goal of the conspiracy.
  • You can not have one person who wishes to conspire and another who does not
  • Unilateral Conspiracy – Def can enter into a conspiracy by herself – NO AGREEMENT with unilateral con.
  • Bilateral Conspiracy – There must be 2 people that wish to enter into a plan to commit a crime in order to meet the conspiracy requirement
  • Gov’t finds attempted conspiracy
  • It is impossible for her to have a bilateral conspiracy
  • Unilateral Conspiracy = Attempted Conspiracy
  • Bilateral Conspiracy = Full Conspiracy

Commonwealth v. Camerano (671) Intent to distribute pot with a tenant to process the weed agreement/consp.

  • Unless there is specific evidence showing a link between two parties, a mere knowledge of illegal conduct does not constitute conspiracy
  • Circumstantial evidence is often all that is available in conspiracy proceedings
  • Was there an agreement between the two parties to grow marijuana?
  • The state has the burden to prove that the person does know about something, just because they don’t know about it – doesn’t mean that they are presumed to know.
  • In this case the state is trying to prove agreement through circumstantial evidence.
  • One person can be found guilty of conspiracy and one not

U.S. v. Blankenship (677) Property owner charged for allowing guys to set up meth shop.  He rescinded the offer.

  • Mere sales does not lead to conspiracy
  • He was guilty of some crime, just not that of broad conspiracy
  • You must look to the transactions and the person’s involvement in the conspiracy in order to achieve a successful conviction
  • The test is: whether the imposition of liability on transactions of the class depicted by the case would deter crime without adding unduly to the costs of legitimate transactions
  • You want to make sure that the broad rules established by the court do not adversely affect the normal costs of business and punish non-criminal activity.
  • Law and ____, law and economics – law has impact in itself and in other realms as well


Chapter XI – Complicity

  • Aiding and abetting
  • Pre-Crime Conspiracy
  • Vicarious liability
  • Complicity is the theory by which an individual who did not directly complete the act can be held criminally liable for committing the crime

Aiding and Abetting

  • Common Law had Four Levels of Participants for felonies – for misd, any were guilty of aiding and abetting (no longer law – but IT WILL BE ON THE TEST & BAR)
    • Principal in the First Degree – Actually Present and committed the act
    • Principal in the Second Degree – Actually present, aided, counseled, but did not participate/commit
    • Accessory Before the Fact – Not present, but did aid them prior to the crime being committed
    • Accessory After the Fact – Not present, but assisted the offender from being detected
    • The liability of an accessory was tied to that of the principal, the accessory could not be tried before the principal, and if the principal was not guilty, neither was the accessory.
  • As a general rule participation in an offense renders a person liable for that offense
  • The outcome of the principal’s hearing is not always binding on the aider and abettor
  • The liability of an accessory was tied to that of the principal – could not be tried before the principal, principal not guilty accomplice not guilty, appeal of principal/appeal of accomplice

Taylor v. Commonwealth (698) Lady helping her boyfriend abduct his child + Assault and Battery on mom

  • She was convicted of being an accomplice even though he had the right to the child
  • In cases where there are excuses to prosecution, that usually only extends to the person committing the crime, not any and all participants
  • Non delegable exemption – something that is personal to the main defendant – you can’t delegate this excuse to an aider and abettor
  • The principal does not have to be found guilty in order for the aider and abettor to be criminally liable in cases of exception


Establishing Liability

  • Three exceptions to aider and abettor liability
    • Victim can not be an aider or abettor
    • Persons sought to be in need of special protection(Mann act – 2 girls)
    • Participation by another is necessary to its commission
  • Two components to aiding and abetting
    • Act on part of a defendant in which contributes to the execution of a crime
    • Intent to aid in its commission
  • To be liable as a party before the crime a person must:
    • Have knowledge of the crime
    • Have intent to bring about the crime
    • Must commit some act that contributes
  • To be liable as a party during the crime a person must:
    • Know of the crime
    • Intent to further its success
    • Contribute at least one act of affirmative assistance
  • Conspiracy=agreement + overt act(that is done by anyone)
  • Accomplice=CONTRIBUTING ACT (the main difference between the two crimes)
    • Always see if there was any act(keeping lookout, physical restraint, etc.)
  • Party gets a full range of punishment, conspirator gets one level lower of punishment
  • If you have a legal duty to act and you fail to do so, you can be guilty as a party by omission
  • Aiders and abettors will be responsible for the criminal harms they have naturally, probably , and foreseeably put in motion – it is the initial intnet that extends to all other crimes

U.S. v. Irwin (709) Bad cop working with G.D. in drug conspiracy

  • Can someone be criminally liable for aid and abetting a conspiracy once the conspiracy has already been established? – Yes
  • A conspiracy is an ongoing and continuing offense
  • There is no aiding and abetting a conspiracy after the fact
  • Intent to conspiracy is often displayed by other means(assistance,
  • Motive to render aid to conspiracy does not matter


Liability under the Coconspirator Rule

  • One person is liable for an offense committed by another because the two were both member of the same criminal conspiracy
  • Withdrawal is traditionally and still generally not a defense to a charge of conspiracy
    • In order to successfully abandon the scheme a party must communicate to the others involved his intention to do so

Pinkerton v. U.S. (722)

  • D can be liable for 1) being involved in conspiracy 2) the felony intended 3) any foreseeable offense committed in furtherance of the felony
    • Liability is for completed crimes only
  • If the other crimes were not done in furtherance of the conspiracy then you’re not liable as a party because it was not foreseeable

State v. Bridges (724) Guy gets friends and returns to party to start a fight.  They kill someone, he’s guilty.

  • A co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy
  • Reasonably foreseeable: Is an objective standard – decide what is objectively foreseeable (what is closely connected with the original conspiracy)



  • If you can withdraw from a criminal enterprise you can get rid of your liability
  • You can withdraw by telling the police

U.S. v. U.S. Gypsum

  • A conspirator can withdraw by:
    • Disavowing the unlawful goal of the conspiracy or
    • Affirmatively acting to defeat the purpose of the conspiracy or
    • Taking the “definite , decisive, and positive steps to disassociate himself from the conspiracy


Vicarious Liability

  • Best reserved for those situations in which the accused is responsible for a crime committed by another simply because of the related statuses of the accused and the actual perpetrator
  • It is quite a stretch, and rarely wins

State v. Beaudry (742) Guy serves alcohol to friends after the bar closes

  • Scope of employment limits liability to illegal conduct which occurred while the offending employee was engaged in some job-related activity and thus limits the accused’s vicarious liability to conduct with which the accused has a factual connection and has some responsible relation to the public danger envisaged by the legislature
  • Vicarious liability à No actus Reus
  • Strict liability à No Mens Rea
  • Respondeat superior – the master is liable for the actions of the servant
  • If you didn’t have vicarious liability everyone would incorporate and you would have no responsibility
  • Vicarious Liability can be applied for the benefit of the public
  • TXPC 7.01 – Parties to offenses – Abolishes the principal and accomplice
  • TXPC 7.02 – Criminal responsibility for conduct of another – If they cause an innocent person to engage in conduct prohibited by the definition of the offense or intentionally promotes, assists the offense
  • TXPC 7.03 – Defenses excluded – If an actor is convicted by the actions of another and they were party to its commission – it is no defense that the person is legally incapable of committing the offense in an individual capacity or if the person has been acquitted


Chapter 12 – Defenses

  • True defenses are necessary to help define the scope of criminal justice

Justification, Necessity, and Duress, Generally

  • C.L. Necessity defense – the defense exonerates a D where the harm resulting from a violation of the law is significantly less than the harm that compliance would have wrought
  • Original cases involved shipwrecks
  • Necessity and duress are closely related
  • Duress deals with the wrongful pressure by another person to engage in criminal activity
  • Duress is limited on a state by state basis – Texas is the only state that allows duress in intentional killings
  • Necessity defense requires D to show that he: 1) was faced with a choice of evils and chose the lesser evil, 2) acted to prevent imminent harm, 3) reasonably anticipated a direct causal relationship between his acts and the harm to be averted, and 4) had no legal alternative but to violate the law
  • A D’s fault for placing himself in a situation may bar the D from relying upon that situation to establish duress or perhaps even necessity or justification
  • Justification and necessity both have objective and subjective tests, but usually the only test applied is that of the subjective mind
  • Defenses will often use a subjective test with an objective component
    • Someone could be really afraid and strike first – subjective
    • But would the reasonable ordinary prudent person do the same? – objective
    • The jury will look at to see if the D’s conduct was reasonable
  • Duress will not be available when an actor places himself or herself in a situation where it is probably that he or she would be subjected to duress, the defense of duress is unavailable. (Williams v. State)

U.S. v. Bailey (762) Prison escapees attempt to use duress and necessity as defense for their violation of escape

  • Duress – some other person is forcing you to violate the law
  • Necessity – some physical force other than man is forcing you to violate the law (lesser of 2 evils)
  • If there is a reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm, the defenses will fail”
    • Is there a chance to refuse to do the criminal act
    • Is there a chance to avoid the threatened harm
  • The court does not like the fact that these guys did not surrender the minute they escaped, if the conditions were bad they
  • You have a duty to surrender if you escape because of bad conditions
  • If you’re going to claim duress you have to make a bona fide case to show you were under such duress


Toops v. State (771) Drunk guy jumps into drivers seat of car in order to avert an accident

  • What was the lesser of two evils?  Driving drunk over getting into an accident


Duress and Necessity can apply but there can be a statute that makes them unavailable (Drugs)

Supremacy Clause-The U.S. constitution and all the laws of the U.S. are the supreme laws of the land (Fed-Illegal to have drugs; State-Drugs ok – U.S. will win)

TXPC 8.05 – Duress – Affirmative defense, someone was compelled to do the act by the threat of imminent SBI or Death(felony) or BI(Misdemeanor).  Objective test, and it is not a defense if they place themselves in a situation in thish it was probable that he would be subjected to compulsion. 


  • Chapter 8 Defenses
  • Chapter 9 Justification

TXPC 9.22 – Necessity – if the actor reasonably(objective) believes the conduct is immediately necessary to avoid imminent harm(D-Production, P-Persuasion)


Defense of Persons, Property and Related Matters

  • The most commonly invoked defenses are protecting the actor, other persons, or property


Self Defense

  • One can use deadly force in self-defense only if one reasonably believes that he is being assaulted or threatened with deadly force
  • Retreat rule: Some jurisdiction require a person to retreat only when retreat is possible in safety.  Other jurisdictions have no such retreat rule.
  • If a victim is attacked with nondeadly force and nondeadly force would be ineffective as a defensive measure, the victim must either submit to the injury or resort to deadly force at the risk of incurring criminal liability
  • The “castle exception” to retreat states: when you are attacked in your own home you have no duty to retreat.  POLICY: Based on notions of a special privacy interest
  • One who provokes the altercation is not entitled to use force in self-defense during the altercation unless he has withdrawn and communicated as such and is then attacked
    • What constitutes withdrawal is often hard to determine
  • Mere provocation by words or conduct does not destroy the privilege of self-defense
  • A person who voluntarily places himself in a position which he could reasonably expect would result in violence is not entitled to a self-defense claim
  • Real and apparent danger are the same: he can either be armed or appear to be armed
  • Mutual Combat: If both parties willingly enter a fight on equal terms, the situation is characterized as “mutual combat” and neither party has a right of self-defense to actions taken during the fight – withdrawal can allow a party to regain self-defense claims
  • TXPC 9.31 – Use force(non-deadly) against another when they reasonably believe it is immediately necessary to protect themselves against the other’s use of unlawful force (R.B. – ordinary prudent person in the same circumstances)
    • Not justified: verbal provocation, resisting arrest, consent, provocation, retreat,
  • TXPC 9.32 – Use of deadly force is justified when it would be justified under 9.31, when the reasonable person would have retreated, and it was immediately necessary to protect himself or others from the use of deadly force or to prevent(aggkid,himic,sexass,aggsexaslt,rob,arob) 
    • In Texas you have a duty to retreat(as long as it’s reasonable) except in your home
  • TXPC 9.33 – Defense of third person – If they believe the 3rd person would be justified in using force and it has to be immediately necessary
  • TXPC 9.34 – You are entitled to using force to keep someone from committing suicide

State v. Norman (787) Battered wife syndrome and killing of husband

  • The Right to kill is based on the necessity of killing an unlawful aggressor to save oneself from imminent death
  • The belief that death is imminent must be reasonable
  • D can not be the instigator of the deadly confrontation
  • State has to prove self defense was not present
  • Policy: The heavy burden on D ensures that deadly force will be used only where it is  necessary as a last resort in the exercise of the inherent right of self-preservation
  • Imminent – Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law


Self-Defense Against Unlawful Law Enforcement Action

State v. Hobson (801) Lady strikes officer during resisting arrest/search/detention during bike theft invest.

  • Common law has historically recognized the right to self-defense to resist unlawful arrest
  • New methods for redress and safeguards are available
  • A person does not have the right to self defense to prevent an unlawful arrest
  • Policy: Public Policy outweighs any “self-help” practices in this field, it would be socially unacceptable to offer such a remedy
  • To get rid of common law a court will abrogate it through case law


Defense of Others

  • Courts are inclined to impose more limits on these instances than on self-defense:
    • One who perceives only the safety of another at risk may be more susceptible to the threat of the criminal sanction
    • Thee may be more of a risk that one acting in defense of another will act improperly

State v. Beeley (811) Man comes to the aid of his friend who unlawfully got into fight

  • This is the same as the Texas law
  • A person does not have the duty to retreat in the use of deadly force against a third person
  • If a person believes they could use force if they were being attacked they can use force to protect a their person
  • It’s based on the subjective reasoning of the rescuing party
  • Two tests for self defense:
    • Alter ego: the right to defend another is coextensive with the other’s right to defend himself or herself
    • M.P.C. Test: As long as the defendant intervener reasonable believes that the other is being unlawfully attacked, he or she is justified in using reasonable force to defend him or her – in order for this defense to be raised successfully three(3) conditions must be met:
      • The force must be such as the actor could use in defending himself or herself from the harm that he or she believes to be threatened to the third person
      • The third person must be justified in using such protective force in the circumstances as the actor believes them to be
      • The actor must believe that his or her intervention is necessary for the protection of the third party


Defense of Property

  • Greater impositions on this defense that those of self-defense or defense of others
  • Usually limited to nondeadly force

State v. Nelson (818) Gun nut finds guns are stolen, holds criminals at gunpoint until it is returned.

  • If the criminal interference has occurred out of the presence of the defendant at an earlier time, and the property, the reason for the interference, is no longer presence, force can no longer be used to prevent or stop the crime.
  • He was using this defense as a property return method instead of a proactive prevention technique
  • TXPC 9.41 – Protection of own property
  • TXPC 9.42 – Deadly force to protect own property
  • TXPC 9.43 – Force to protect the property of a third person


Defense of Habitation

  • Some statutes have limited the right to kill in prevention of a felonious or serious injury to the occupants



  • It was created because the courts are not going to allow zealous law enforcement methods that go too far
  • Focus on people predisposed to committing crime
  • If officers act in a manner likely to induce the commission of crime and induce those person who would normally avoid crime – entrapment has occurred
  • Often said to have a due process implication
  • Subjective Test
    • Most jurisdictions follow this test
    • Focuses on the deposition of the defendant
    • It attempts to determine the workings of the human mind in an individual situation-common prob
    • The D is innocent and would not have committed the crime without the governments conduct
  • Objective Test
    • Did the police act in such a manner as is likely to induce the commission of crime
    • Focuses on the police and what a reasonable and ordinary person would do under the circumstances
  • Two categories of L.E. impropriety:
    • Unconscionable methods – giving a D free heroin to get him to buy coke, inducement of others to engage in violence or the threat of violence against innocent parties, physical brutality, etc.
    • Illegitimate purposes – capturing people just to get convictions, not to prevent crime – WHAT?
  • TXPC 8.06 – Entrapment is a defense that the actor engaged in the conduct charged because he was induced to do so by a L.E. agent using persuasion.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.  A L.E. agent can be a C.I.
  • England 882 sw2d 902 – Two prong test for entrapment – they have to show some evid to raise the def.
    • Subjective – D must show he was induced by L.E. to commit the crime
    • Objective – D must show that the conduct that induced him would have induced a person of reasonable ordinary prudent person
    • Examples: offers of large sums of money, pleas based on extreme illness, appeal to sympathy
    • If you can establish entrapment as a matter of law the case is dismissed(pre-trial)
    • You do have to admit to everything regarding the crime…yes, but(and juries do not usually buy the entrapment defense) – it can also allow for prior criminal acts to show predisposition

Jacobson v. U.S.(835) Supreme court case regarding entrapment to buy child porn.

  • L.E. can offer opportunity to break law, but when they establish elaborate schemes and induce or coerce someone into breaking the law, entrapment has occurred
  • Had they merely provided the opportunity to buy child porn and he did, he’d be guilty
  • Dissent: The jury was instructed properly as to the defense of entrapment and they still found him guilty; plus, both times he was offered the opportunity to buy porn he did.
  • FIVE FACTORS relevant to determining predisposition
  1. the character of the D;
  2. who first suggested the criminal activity;
  3. whether the D engaged in the activity for profit;
  4. whether the D demonstrated reluctance, and ;
  5. the nature of the government’s inducement


Chapter 13 – Defenses related to Mental Illness

  • Incompetent to stand trial – it is a bar to prosecution for the time the D is unable to be tried
  • Insanity or Diminshed capacity – defensive doctrines that will dismiss the charges completely
  • Incompetent – when a D does not understand the proceedings against him and/or he can not consult with his lawyer – the person is placed in a mental hospital until he regains competency and they then stand trial
  • Insantiy - Your state of mind at the time of the commission of the alleged offense
  • Policies behind the Theory
    • Exculpation of the Nonblameworthy – punishment would have an element of revenge
      • The person does not know right from wrong
    • Channeling offenders into appropriate systems – D’s go to mental health system instead of jail
      • The criminal justice system is not designed for mental health assistance
    • Reinforcement of general notions of responsibility -  
    • Avoidance of misuse of exculpatory doctrines –
  • Defenses are seldom raised and when they are they usually fail

Defense of Insanity

  • It was historically based on the volitional impairment test – M’Naghten
    • It establishes – everyone is presumed to be sane and they are responsible for their crime
    • Because of mental disease or defect he did not know of the nature of his act
    • Whether the D knew what he was doing what was wrong at the time of the commission of the offense
  • CA changes it because the rule was too narrow because there were people who knew what was right or wrong, but could not regulate their conduct
  • Irresistible impulse – if he lacked the capacity to conform his conduct to the requirements of the law  (volitional impairment)
  • Things were ok until John Hinkley
  • After Hinkley the Irrestible impulse def
  • Durham test – was the D mentally ill and was the crime a product of the illness – Baird Likes this
  • Insanity defense(D.C.) – It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a sever mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.  Mental disease or defect does not otherwise constitute a defense.  This has to be proven by clear and convincing evidence
  • Justice Standard – If at the time of his unlawful conduct his mental or emotional processes or behavior controls were impaired to such an extent that he cannot justly be held responsible for his act
  • Mens Rea Standard - The CMS is tied directly to the mental illness, some states focus on a lack of mens rea instead of relying on an insanity defense(4 states)
  • Guilty but mentally ill Standard – someone can be found guilty and mentally ill, allowed for jury discretion-not a good test and didn’t last very long
  • Substance addiction nor pathological gambling can not form the basis for a defense
  • Not guilty
  • Not guilty by reason of insanity – Immediately committed to a mental facility until the D can prove they are ok (the jury can not be told what this means)
  • Guilty

The Defendant has the right to veto the insanity defense


  • Psychopath – one who has no sympathy or remorse and behavior that is manifested in aggressive behavior
  • Insanity is a desperate defense – if you don’t have something to help their defense, counsel will use insanity
  • Insanity only works when you have the most horrific crime committed by someone in a familiar relationship – mother who kills her children(influence on jury) layperson
  • Tradition – D did not know the nature and quality of his act(did now know what he was doing) or he knew what he was doing, but did not know it was wrong
  • TXPC 8.01 – Insanity affirmative defense, b/c of mental disease or defect he did not know his conduct was wrong(not criminal) – does NOT HAVE VOLITIONAL

State v. Wilson (875) Guy kills dad of friend

  • CL Insanity – a person is legally insane if 1) he lacked the “mind, capacity, reason and understanding sufficient to have enabled him to judge of the nature, character and consequences of the act charged against him, that the act was wrong and criminal , or that the commission of it would justly and properly expose him to punishment or 2) if, in committing the act, he was overcome by an irresistible impulse arising from mental disease
  • CL Cognitive approach – a person lacks the substantial capacity to appreciate the criminality (wrongfulness) of his conduct
  • CL Volitional prong – he lacks substantial capacity to conform his conduct to the law
  • Wrongfulness does have a moral component
  • Appellate courts want to resolve the most narrow issue possible
  • A D does not truly appreciate the wrongfulness of his conduct if a mental disease or defect causes him both to harbor a distorted perception of reality and to believe that, under the circumstances as he honestly perceives them, his actions do not offend societal morality, even though he may also be aware that society, on the basis of the criminal code, does not condone his actions
  • A person has to not only think in their mind that the crimin
  • If it’s criminally wrong and society knows it’s wrong – you will not win an insanity defense
  • If you think it may be criminally wrong but society thinks it’s right and you think it’s right…you may win
  • If you get a person to admit they knew their activity was wrong, it’s SUPER hard to get them the insanity def.


People v. Jackson (889) Guy molests baby and beats him VOLITIONAL

  • VOLITIONAL - A person is insane if they lack the substantial capacity to conform their conduct to the requirements of the law
  • B.O.P. – Preponderance of the evidence on the affirmative defense of insanity
  • D has to prove 1) he has a recognized mental illness and 2) lacked capacity to appreciate the wrongfulness or conform conduct to requirement of the law
  • Policeman at the elbow – if he wouldn’t do it with a COP there, he demonstrates that he could conform his conduct – this doesn’t work too well because it would totally prove the case of one side(defendant) but not show the prosecutions case because of the word substantial
  • Temporary mental illness
  • Mental illness v. capacity two prong tests


Diminished capacity

  • This is unlike insanity because it says someone was not able to formulate the CMS required for the crime because of some mental illness

State v. Provost (910) Guy lit his wife on fire

  • Offer of Proof – when you put the witness on the stand to get their testimony on the record, even though it won’t be usable in this trial, it can be on the record for appeal – must be done before the jury is charged
  • Bifurcated trial: Phase 1) Guilt; Phase 2) Defenses/legal cause
  • 575-576


Felony Murder 19.02(b)(3) – it excludes the offense of manslaughter, they must commit an act clearly dangerous to human life(bank robber passing note w/no weapon – not clearly dangerous to human life), the act(clearly dangerous to human life) must also be the act that causes the victims death(Lawson 64 sw3d 396-cochran)

Mistake of fact – a Defense – mistake of fact negates the kind of culpability required to commit the offense


Mistake of law – an Affirmative Defense – rarely wins 8.03 (b) reasonable reliance on official statement or written interpretation of law in legal opinion (Green 829 sw2d 222) – the court will make you rely on a recent statement of the law

Incohate crime v. Renunciation Chapter 15


Conspiracy – must be an agreement with one or more persons, that one or more of them would commit a crime + overt act

Solicitation – least amount of all of these – requests, commands, or attempts to induce another to engage in a crime

Limited by: Capital or 1st degree felony, corroborating


Renunciation 15.04 – affirmative defense to all of the above


19.02 – Sudden passion (2nd degree felony)

Know all of the common law larceny crimes

Habitation – 31.01

Diminshed capacity is not a defense like insanity – because of my diminished capacity I was not able to have the CMS for this offense

Insanity 8.01

Look at chapter 6 in TPC


General intent – there is a general requirement of an intent