Texas Penal Code Flashcards
Range of punishment for Class A misdemeanor
0 to 365 days; possible fine up to $4,000
Range of punishment for Class B misdemeanor
0 to 180 days; possible fine up to $2,000
Range of punishment for Class C misdemeanor
no jail; possible fine up to $500
Range of punishment for 1st Degree Felony
5 to 99 years or life; possible fine up to $10,000
Range of punishment for 2nd Degree Felony
2 to 20 years; possible fine up to $10,000
Range of punishment for 3rd Degree Felony
2 to 10 years; possible fine up to $10,000
When does Texas have jurisdiction over an offense a person commits by his own conduct or the conduct of a person he is criminally responsible?
- either the conduct or a result that is an element of the offense occurs inside Texas;
- the conduct outside Texas constitutes an attempt to commit an offense inside Texas;
- the conduct outside Texas constitutes a conspiracy to commit an offense inside Texas and an act in furtherance of the conspiracy occurs inside Texas; or
- the conduct inside Texas constitutes an attempt, solicitation, or conspiracy to commit an offense in another state that is also an offense in Texas.
What is the definition of “bodily injury?”
Physical pain, illness, or any impairment of physical condition.
What is the definition of “deadly weapon?”
- a firearm or anything designed, made, or adapted for purpose of inflicting death or serious bodily injury; or
- anything in the manner of its use or intended use is capable of causing death or serious bodily injury.
What is the definition of “possession?”
Actual care, custody, control, or management.
What is the definition of “public place?”
Any place the public or a substantial group of the public has access; includes streets, highways, and common areas of schools, hospitals, apartments, office buildings, transport facilities, and shops.
What is the definition of “serious bodily injury?”
Bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
When is the existence of an affirmative defense submitted to the jury?
Only when there is evidence admitted supporting the defense.
What is the defendant’s burden of proof as to an affirmative defense?
Preponderance of the evidence.
What is the definition of “criminal episode?”
The commission of two or more offenses committed pursuant to same transaction or common scheme or plan or the offenses are the repeated commission of the same or similar offenses.
When can multiple criminal offenses be consolidated for prosecution?
A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.
What must the State do if a single criminal action is based on more than one charging instrument?
The State must file written notice of the action not less than 30 days prior to the trial.
If a defendant is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, how are the sentences to be served?
Concurrently.
Exceptions: Intoxication Assault; Intoxication Manslaughter; Sex Offenses; Injury to Child, Elderly; Disabled that are 1st degree felonies – these offenses may be ordered by trial court to be served either concurrently or consecutively.
When does a defendant have a right to a severance of offenses?
Whenever two or more offenses have been consolidated or joined for trial.
If a defendant is granted a severance of offenses, how are the sentences to be served if convicted of more than one offense?
Concurrently or consecutively.
When does a defendant not have a right to a severance of offenses?
Intoxication Assault; Intoxication Manslaughter; Sex Offenses; Injury to Child, Elderly; Disabled that are 1st degree felonies – these offenses may be ordered by trial court to be served either concurrently or consecutively.
Discuss requirement of a voluntary act or omission.
A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. A person who omits to perform an act does not commit an offense unless they have a duty to perform the act.
What are the four culpable mental states?
- Intentional
- Knowing
- Reckless
- Criminal Negligence
Define “intentionally.”
A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result.
Define “knowingly.”
A person acts knowingly when he is aware of the nature of his conduct, that the circumstances exist, or when he is aware his conduct is reasonable certain to cause the result.
Define “recklessly.”
A person acts recklessly when he is aware of but conscious disregards a substantial and unjustifiable risk the circumstances exist or the result will occur.
Define “criminal negligence.”
A person acts with criminal negligence when he ought to be aware of a substantial and unjustifiable risk the circumstances exist or the result will occur. Risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
When is a party criminally responsible as a party to an offense?
When the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.
Can a person be convicted as a party if the indictment does not charge him as a party?
Yes.
Can each party to an offense be charged with committing the offense?
Yes.
When is a person criminally responsible for the conduct of another?
- acting with required culpability, he causes or aids an innocent or non responsible person to engage in conduct;
- acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense; or
- having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
Discuss “insanity.”
It is an affirmative defense that at the time of the conduct charged, the actor did not know his conduct was wrong because of severe mental disease or defect.
Discuss “mistake of fact.”
It is a defense to prosecution the actor through mistake formed a reasonable belief about a fact if his mistake negated the culpability required for committing the offense.
Discuss “mistake of law.”
It is not a defense to prosecution to be ignorant of any law after the law has taken effect.
Can “mistake of law” be a defense?
Yes. It is an affirmative defense if the actor reasonable believed the conduct charged was not a crime and he acted in reasonable reliance on an official statement of the law contained in a written order by an administrative agency or a written interpretation of the law contained in an opinion of a court of record.
Is voluntary intoxication a defense to a crime?
No.
When may voluntary intoxication by introduced by the actor?
Evidence of temporary insanity caused by voluntary intoxication may be introduced in mitigation of the penalty.
Discuss “duress” as a defense to prosecution.
It is an affirmative defense. In a felony, defendant must show he was compelled to act by threat of imminent death or serious bodily injury to himself or another. In a misdemeanor, defendant must show he was compelled to act by force or threat of force. Defendant MUST admit the offense to use duress as a defense.
Discuss “necessity” as a justification.
Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.
When is use of force against another not justified?
- In response to verbal provocation alone;
- to resist an arrest or search by a peace officer even if the arrest or search is unlawful; (EXCEPTION - greater force than necessary)
- if the actor consented to the exact force used or attempted by the other;
- if the actor provoked the other’s use or attempted use of force;
- if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other persons while the actor was carrying a weapon in violation of 46.02 or 46.05.
When is a person justified in using self-defense?
When and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.
When is use of self-defense presumed reasonable?
- person unlawfully and with force entered or was attempting to enter the actor’s occupied habitation, vehicle, or place of business or employment;
- person unlawfully and with force removed, or was attempting to remove the actor from his habitation, vehicle, or place of business or employment;
- person was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
- defendant did not provoke the person; and
- defendant not engaged in criminal activity other than Class C at time force used.
When is use of deadly force justified?
When the person is justified in using force under 9.31, he reasonably believes deadly force is immediately necessary to protect himself against use or attempted use of deadly force or to prevent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Same presumptions for reasonableness as 9.31.
When is a person justified in using force or deadly force to protect a third person?
When justified under 9.31 or 9.32 in using force or deadly force to protect himself and he reasonably believes it is necessary to protect the third person.
When is deadly force to protect property justified?
When the actor reasonably believes force is immediately necessary to prevent or terminate trespass on the property or prevent unlawful interference with the property AND
he reasonably believes deadly force is immediately necessary to prevent imminent commission of arson, burglary, robbery, aggravated robbery, theft at night, or criminal mischief at night OR
to prevent person who is fleeing from escaping with property AND he reasonably believes the land or property cannot be protected by any other means.
What are the three categories of misdemeanors?
- Class A
- Class B
- Class C
If an offense is designated as a misdemeanor without specification as to punishment or category, what is it?
Class C
What are the five categories of felonies:
- Capital
- First degree
- Second degree
- Third degree
- State jail
If an offense is designated as a felony without specification as to its category, what is it?
State jail
What is the punishment for a capital felony?
- If state seeks the death penalty – LWOP or death.
- If state does not seek the death penalty – Life if defendant committed offense when under 18 or LWOP if defendant 18 or older.
What is the punishment for a repeat felony offender?
- 15 to 99 years or Life if on trial for a F1 offense
- 5 to 99 years or Life if on trial for a F2 offense
- 2 to 20 years if on trial for a F3 offense
And an optional fine up to $10,000
What is the punishment for a habitual felony offender?
25 to 99 years or Life if on trial for a F1, F2 or F3 offense
No option for a fine
What is the punishment for a repeat felony offender convicted of a sexually violent offense committed on or after their 18th birthday?
Life in prison without parole.
What is the punishment for a repeat SJF offender?
- if finally convicted of two SJFs, then ROP is 2 to 10 years
What is the punishment for a habitual SJF offender?
- if finally convicted of two felonies (not SJFs), then ROP is 2 to 20 years
What is the punishment for a repeat Class A offender?
- if finally convicted of a Class A or any felony, then 90 days to 365 days and a possible fine up to $4,000
What is the punishment for a repeat Class B offender?
- if finally convicted of a Class A or B or any felony, then 30 days to 180 days and a possible fine up to $2,000
How can a defendant be prosecuted for a SJF under TPC 12.44?
- 12.44(a): Convict as a SJF and punish as a Class A
- 12.44(b): Prosecute as a Class A
What is the punishment for an offense committed because of bias or prejudice?
- the punishment is increased to the next highest category of offense
- if a Class A, then 180 days to 365 days
When does a person commit “criminal attempt?”
If with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
What is the punishment for criminal attempt?
One category lower than the offense attempted
When does a person commit “criminal conspiracy?”
If with intent to commit a felony:
- he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
- he or one or more of them performs an overt act in pursuance of the agreement
What is the punishment for criminal conspiracy?
One category lower than the most serious felony that is the object of the conspiracy
What is not a defense to prosecution for criminal conspiracy?
- one or more of the conspirators is not criminally responsible;
- one or more of the conspirators has been acquitted as long as two or more conspirators have not been acquitted
- one or more of the conspirator have not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;
- the actor belongs to a class of persons that is legally incapable of committing the object offense in an individual capacity; or
- the object offense was actually committed
When does a person commit “criminal solicitation?”
If with intent to commit a capital felony or F1, he requests, commands, or attempts to induce another to engage in specific conduct that would constitute the felony or make the other a party to its commission
Are there any restrictions for conviction for criminal solicitation?
A person may not be convicted on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on it
What is the punishment for criminal solicitation?
- F1 if offense solicited is a capital felony
- F2 if the offense solicited is a F1
What is the punishment for criminal solicitation of a minor?
One category lower than the solicited offense UNLESS
- the actor was 17 at time of offense and a member of a street gang – then same category as the offense
What are the types of criminal homicide?
- Murder
- Capital Murder
- Manslaughter
- Criminally Negligent Homicide
What is the definition of “adequate cause?”
Cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection
What is the definition of “sudden passion?”
Passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
What are the three ways a person commits murder?
- intentionally or knowing causing the death of another
- intending to cause SBI and commits an act clearly dangerous to human life that causes the death of another
- while committing or attempting to commit a felony, other than manslaughter, commits or attempts to commit an act clearly dangerous to human life that causes the death of another
Discuss how “sudden passion” can be an issue in a murder trial.
At punishment stage of trial, the defendant may raise issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. It is an affirmative defense. If proven, then F2 punishment.
How does a person commit capital murder?
- Commits murder of:
- peace office or fireman
- in course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction, retaliation, or terroristic threat
- murder for remuneration
- murder while escaping from a penal institution
- while incarcerated, murders employee
- while incarcerated for murder, murders another
- murders more than one person during same criminal episode or during same scheme or course of conduct
- murders a person under 10 years old
- in retaliation, murders a judge or justice
What is the range of punishment for kidnapping?
2 to 10 years; possible $10,000 fine
What is the range of punishment for unlawful restraint?
Class A unless:
- person restrained under 17 years old = SJF; or
- victim exposed to SBI = F3
What is the definition of “abduct?”
It means to restrain a person with intent to prevent his liberation by:
- secreting or holding him in a place where he is not likely to be found; or
- using or threatening to use deadly force
What is the definition of “restrain?”
It means to restrict a person’s movement without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person.
What is the range of punishment for aggravated kidnapping?
5 to 99 years or Life unless shown at punishment phase of trial that actor voluntarily released victim in safe place then F2.
How is aggravated kidnapping committed?
Intentionally or knowingly abducts another with intent to:
- hold for ransom or reward;
- use as a shield or hostage;
- facilitate the commission of a felony;
- inflict bodily injury on him or violate or abuse him sexually
- terrorize him or a third person; or
- interfere with performance of any governmental or political function
- uses or exhibits a deadly weapon
What is the range of punishment for trafficking of persons?
F2 unless it results in death of person trafficked or the person trafficked is a child then = F1
What is the range of punishment for continuous trafficking of persons?
25 to 99 years or Life
When does a person commit continuous trafficking of a person?
During a period that is 30 days or more in duration, the person engages two or more times in trafficking conduct
What is the range of punishment for continuous sexual abuse of a child?
25 to 99 years or Life
When does a person commit continuous sexual abuse of a child?
During a period that is 30 days or more in duration, the person commits two or more acts of sexual abuse against the same or different victims AND the actor is 17 years old or older and victim is younger than 14 years old
When is it an affirmative defense to continuous sexual abuse of a child?
- actor not more than 5 years older than victim or youngest victim if more than one victim;
- actor did not use duress, force, threat; and
- actor not subject to registration requirements
What is the range of punishment for public lewdness?
0 to 365 days; fine up to $4,000
When does a person commit public lewdness?
If he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed:
- act of sexual intercourse;
- act of deviate sexual intercourse;
- act of sexual contact; or
- act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl
What is the range of punishment for indecent exposure?
0 to 180 days; fine up to $2,000
When does a person commit indecent exposure?
If he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be alarmed by his act.
What is the range of punishment for indecency with a child?
- 2 to 10 years if by exposure
- 2 to 20 years if by contact
When is it an affirmative defense to prosecution for indecency with a child?
- actor not more than 3 years older than victim;
- did not use force, threat, or duress; and
- not subject to registration requirements
- actor was spouse of the child at time of offense
Discuss indecency by contact.
Actor commits an offense if the child is younger than 17 years old and he engages in sexual contact with the child or causes the child to engage in sexual contact
Discuss indecency by exposure.
Actor commits an offense if the child is younger than 17 years old and, with the intent to arouse or gratify the sexual desire of any person, exposes the person’s anus or any part of the person’s genitals, knowing the child is present; OR causes the child to expose the child’s anus or any part of the child’s genitals.
What is the range of punishment for improper relationship between student and educator?
2 to 20 years
When is it an affirmative defense to prosecution for improper relationship between student and educator?
- Actor was spouse of the student at time of offense; or
- Actor was not more than 3 years older than enrolled person AND the actor and enrolled person were already in relationship before actor’s employment as an educator.
When does an educator commit an offense for improper relationship with a student?
- Engages in sexual contact or intercourse with a person enrolled in public or private primary or secondary school where educator works
- enrolled in public primary or secondary school in the same school district
What are the ranges of punishment for assault?
- Class A unless:
- committed by threat or offensive or provocative contact = Class C
- committed against a public servant = F3
- previously convicted of FV = F3
- impedes breathing or circulation = F3
- previously convicted of FV and impedes = F2
- victim is a sport participant = Class B
When is it an affirmative defense to sexual assault of a child?
- Actor was spouse of the child;
- Actor not more than 3 years older than child;
- Actor not subject to registration requirements
- Victim 14 years old or older
What is the range of punishment for aggravated assault?
- F2 unless:
- Actor uses DW and causes SBI to family member; or
- Committed against public servant
Then = F1
What is the range of punishment for aggravated sexual assault?
- F1 unless:
- Victim is younger than 6 years old; or
- Victim is younger than 14 year old AND
- person causes SBI;
- places victim in fear
- uses or exhibit a DW
- administers drugs to victim
THEN = 25 to 99 years or Life
What is the range of punishment for violating a condition of bond set in a family violence, sexual assault or abuse, or stalking case?
- Class A
- unless previously convicted 2 or more times or has violated the order or condition of bond by committing assault or stalking THEN = F3
What is the range of punishment for repeated violations in family violence, sexual assault or abuse, or stalking case?
F3
When does a person commit an offense of repeated violations in family violence, sexual assault or abuse, or stalking case?
If he engages in conduct that constitutes a violation of an order or bond two or more times during a period that is 12 months or less
When does a person commit an offense of continuous violence against the family?
If he engages in assault two or more times during a period that is 12 month or less against a person or persons considered family member
What is the range of punishment for an offense of continuous violence against the family?
F3
What is the range of punishment for arson?
F2 unless habitation or place of worship THEN = F1
What is the range of punishment for criminal mischief?
Based of pecuniary loss:
- MB = $50 to less than $500
- MA = $500 to less than $1,500
- SJF = $1,500 to less than $20,000
- F3 = $20,000 to less than $100,000
- F2 = $100,00 to less than $200,000
- F1 = $200,000 or more
How is pecuniary loss determined?
- If property destroyed:
- FMV at time of destruction; or
- FMV for cost of replacement
- If property damaged:
- The cost of repairing or restoring the property
What is the amount of pecuniary loss if it cannot be ascertained?
Deemed to be greater than $500 but less than $1,500.
What is the range of punishment for burglary of a habitation?
- F2
- F1 if habitation entered to commit felony other than felony theft
What is the range of punishment for burglary of a vehicle?
- MA
- Except MA with minimum 180 days if previously convicted
- Except SJF if previously convicted 2 or more times
What is range of punishment for theft of service?
- MC = under $20
- MB = $20 to less than $500
Then standard value range
Define “minor” as it relates to an Online Solicitation of a Minor offense.
- An individual who represents himself to be younger than 17 years of age
- An individual whom the actor believes to be younger than 17 years of age
Define “sexually explicit” as it relates to an Online Solicitation of a Minor offense.
Any communication, language, or material that relates to or describes sexual conduct.
When does a person commit Online Solicitation of a Minor?
- Actor must be 17 years or older
- Intent to arouse or gratify the sexual desire or any person
- communicates in a sexually explicit manner with a minor or distributes sexually explicit material to a minor
- over the internet, email, text message, other electronic message service, or through a commercial online service
OR
- Actor knowingly solicits a minor to meet him or another person over the internet, email, text message, other electronic message service, or through a commercial online service
- with the intent the minor will engage in sexual contact, sexual intercourse or deviate sexual intercourse
What are the defenses to Online Solicitation of a Minor?
- the actor was married to the minor
- the actor was not more than 3 years older than the minor and the minor consented to the conduct
What are not defenses to Online Solicitation of a Minor?
- the meeting did not occur
- the actor did not intend for the meeting to occur
- the actor was engaged in a fantasy
What is the range of punishment for Online Solicitation of a Minor?
Communicates or distributes = F3 unless minor under 14 then = F2
Meeting = F2
What are the defenses to money laundering?
- transaction necessary to preserve person’s right to representation as guaranteed by 6th Amendment of U.S. Constitution and Art. 1, Sec. 10 of Texas Constitution
- funds were received as bona fide legal fees by a licensed attorney and at the time of their receipt, the attorney did not have actual knowledge the funds were derived from criminal activity
What is the range of punishment for money laundering?
Standard monetary levels for felony offenses.
When does a person commit witness tampering?
- With intent to influence the witness, he offers, confers, or agrees to confer any benefit in an official proceeding, or he coerces a witness in an official proceeding:
- to testify falsely;
- to withhold testimony, information, documents, or things;
- to elude legal process;
- to absent himself from proceeding once legally summoned; or
- abstain from, discontinue, or delay the prosecution of another
When is it a defense to prosecution for witness tampering?
- the benefit was reasonable restitution for damages suffered by complaining witness and it was a result of an agreement negotiated with assistance of prosecutor
What is the range of punishment for witness tampering?
F3 except:
- if criminal prosecution, same level as the most serious charge in the criminal case unless capital felony then F1
- if criminal prosecution involves family violence, then same level as criminal case or F3, whichever is greater
- if criminal prosecution involves family violence and has previous conviction for family violence, then same level as criminal case or F2, whichever is greater
What is the range of punishment for perjury?
Class A
What is the range of punishment for aggravated perjury?
F3
When is it a defense to prosecution for aggravated perjury?
- the actor retracts his false statement:
- before completion of the testimony; and
- before it became manifest the falsity of the statement would be exposed
When does a person commit Failure to Identify and what is the range of punishment?
- He intentionally refuses to give his name, address, or date of birth to a peace officer who has lawfully arrested him. (Class C)
- He intentionally gives a false name, residence address, or date of birth to a peace office who has lawfully arrested or lawfully detained the person. (Class B)
If fugitive from justice = one level higher
What is the range of punishment for failure to report aggravated sexual assault of a child?
Class A
What is the range of punishment for failure to report a felony?
Class A (must be felony that results in SBI or death)
What is the range of punishment for harassment?
Class B unless prior conviction then = Class A
What is the range of punishment for stalking?
F3 unless prior conviction then = F2
What is the range of punishment for prostitution?
Class B unless one or two convictions then = Class A; or SJF if three or more convictions.
F2 if person solicited is younger than 18.
Deferred counts as a conviction.
What is the range of punishment for promotion of prostitution?
Class A unless previously convicted then = SJF
F2 if actor engages in conduct involving person younger than 18
What is the range of punishment for aggravated promotion of prostitution?
F3 unless enterprise uses prostitute younger than 18 then = F1
True or False: A switchblade knife is a prohibited weapon.
False.
True or False: Public Intoxication is a LIO of DWI.
False.
What is the range of punishment for Class B DWI?
3 to 180 days; possible fine up to $2,000
What is the range of punishment for Class B DWI with an open container?
6 to 180 days; possible fine up to $2,000
What is the range of punishment for a DWI with an alcohol concentration level of .15 or more?
30 to 365 days; possible fine up to $4,000
What is the range of punishment for DWI with a Child Passenger (younger than 15)?
SJF
What is the range of punishment for Intoxication Assault?
F3 unless person injured is peace officer, fireman, EMS then = F2
What is the range of punishment for Intoxication Manslaughter?
F2 unless person killed is peace officer, fireman, EMS then = F1
For enhancement purposes on a DWI, when is a conviction a “final conviction?”
A conviction that occurs on or after September 1, 1994 whether the sentence is imposed or probated.
Define “combination” as it relates to engaging in organized criminal activity.
Three or more persons who collaborate in carrying on criminal activities
What is the range of punishment for Engaging in Organized Criminal Activity?
One category higher than the offenses set forth in the statute.
LWOP if offense is ASSA and actor is 18 and victim is younger than 6; victim is younger than 14; or victim younger than 17 and received SBI
15 to 99 years or Life if most serious felony is not stated above
What is the range of punishment for directing activities of criminal street gangs?
25 to 99 years or Life
