Texas Penal Code

Question 1

When is the existence of an affirmative defense submitted to the jury?

Answer 1

Only when there is evidence admitted supporting the defense.

Question 2

What is the defendant’s burden of proof as to an affirmative defense?

Answer 2

Preponderance of the evidence.

Question 3

What is the definition of “criminal episode?”

Answer 3

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.

Question 4

When is a party criminally responsible as a party to an offense?

Answer 4

When the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.

Question 5

When is a person criminally responsible for the conduct of another?

Answer 5

1. acting with required culpability, he causes or aids an innocent or non responsible person to engage in conduct;
2. 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
3. having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

Question 6

Discuss “insanity.”

Answer 6

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.

Question 7

Discuss “mistake of fact.”

Answer 7

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.

Question 8

Discuss “mistake of law.”

Answer 8

It is not a defense to prosecution to be ignorant of any law after the law has taken effect.

Question 9

Can “mistake of law” be a defense?

Answer 9

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.

Question 10

Is voluntary intoxication a defense to a crime?

Answer 10

No.

Question 11

When may voluntary intoxication by introduced by the actor?

Answer 11

Evidence of temporary insanity caused by voluntary intoxication may be introduced in mitigation of the penalty.

Question 12

Discuss “duress” as a defense to prosecution.

Answer 12

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.

Question 13

Discuss “necessity” as a justification.

Answer 13

Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.

Question 14

When is use of force against another not justified?

Answer 14

1. In response to verbal provocation alone;
2. to resist an arrest or search by a peace officer even if the arrest or search is unlawful; (EXCEPTION - greater force than necessary)
3. if the actor consented to the exact force used or attempted by the other;
4. if the actor provoked the other’s use or attempted use of force;
5. 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.

Question 15

When is a person justified in using self-defense?

Answer 15

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.

Question 16

When is use of self-defense presumed reasonable?

Answer 16

1. person unlawfully and with force entered or was attempting to enter the actor’s occupied habitation, vehicle, or place of business or employment;
2. person unlawfully and with force removed, or was attempting to remove the actor from his habitation, vehicle, or place of business or employment;
3. person was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
4. defendant did not provoke the person; and
5. defendant not engaged in criminal activity other than Class C at time force used.

Question 17

When is use of deadly force justified?

Answer 17

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.

Question 18

When is a person justified in using force or deadly force to protect a third person?

Answer 18

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.

Question 19

When is deadly force to protect property justified?

Answer 19

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.

Question 20

When does a person commit “criminal attempt?”

Answer 20

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.

Question 21

What is the punishment for criminal attempt?

Answer 21

One category lower than the offense attempted

Question 22

When does a person commit “criminal conspiracy?”

Answer 22

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

Question 23

What is the punishment for criminal conspiracy?

Answer 23

One category lower than the most serious felony that is the object of the conspiracy

Question 24

What is not a defense to prosecution for criminal conspiracy?

Answer 24

• 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

Question 25

When does a person commit “criminal solicitation?”

Answer 25

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

Question 26

Are there any restrictions for conviction for criminal solicitation?

Answer 26

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

Question 27

What is the definition of “adequate cause?”

Answer 27

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

Question 28

What is the definition of “sudden passion?”

Answer 28

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.

Question 29

What are the three ways a person commits murder?

Answer 29

• 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

Question 30

Discuss how “sudden passion” can be an issue in a murder trial.

Answer 30

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.

Question 31

How does a person commit capital murder?

Answer 31

• Commits murder of:

1. peace office or fireman
2. in course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction, retaliation, or terroristic threat
3. murder for remuneration
4. murder while escaping from a penal institution
5. while incarcerated, murders employee
6. while incarcerated for murder, murders another
7. murders more than one person during same criminal episode or during same scheme or course of conduct
8. murders a person under 10 years old
9. in retaliation, murders a judge or justice

Question 32

What is the definition of “abduct?”

Answer 32

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

Question 33

What is the definition of “restrain?”

Answer 33

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.

Question 34

How is aggravated kidnapping committed?

Answer 34

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

Question 35

When does a person commit continuous trafficking of a person?

Answer 35

During a period that is 30 days or more in duration, the person engages two or more times in trafficking conduct

Question 36

When does a person commit continuous sexual abuse of a child?

Answer 36

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

Question 37

When is it an affirmative defense to continuous sexual abuse of a child?

Answer 37

• 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

Question 38

When does a person commit public lewdness?

Answer 38

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:

1. act of sexual intercourse;
2. act of deviate sexual intercourse;
3. act of sexual contact; or
4. act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl

Question 39

When does a person commit indecent exposure?

Answer 39

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.

Question 40

When is it an affirmative defense to prosecution for indecency with a child?

Answer 40

• 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

Question 41

Discuss indecency by contact.

Answer 41

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

Question 42

Discuss indecency by exposure.

Answer 42

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.

Question 43

When is it an affirmative defense to prosecution for improper relationship between student and educator?

Answer 43

• 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.

Question 44

When does an educator commit an offense for improper relationship with a student?

Answer 44

• 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

Question 45

When is it an affirmative defense to sexual assault of a child?

Answer 45

• 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

Question 46

When does a person commit an offense of repeated violations in family violence, sexual assault or abuse, or stalking case?

Answer 46

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

Question 47

When does a person commit an offense of continuous violence against the family?

Answer 47

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

Question 48

What is the amount of pecuniary loss if it cannot be ascertained?

Answer 48

Deemed to be greater than $700 but less than $2,500.

Question 49

Define “minor” as it relates to an Online Solicitation of a Minor offense.

Answer 49

• 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

Question 50

Define “sexually explicit” as it relates to an Online Solicitation of a Minor offense.

Answer 50

Any communication, language, or material that relates to or describes sexual conduct.

Question 51

When does a person commit Online Solicitation of a Minor?

Answer 51

• 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

Question 52

What are the defenses to Online Solicitation of a Minor?

Answer 52

• 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

Question 53

What are not defenses to Online Solicitation of a Minor?

Answer 53

• the meeting did not occur
• the actor did not intend for the meeting to occur
• the actor was engaged in a fantasy

Question 54

When does a person commit witness tampering?

Answer 54

• 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

Question 55

When is it a defense to prosecution for witness tampering?

Answer 55

• the benefit was reasonable restitution for damages suffered by complaining witness and it was a result of an agreement negotiated with assistance of prosecutor

Question 56

When is it a defense to prosecution for aggravated perjury?

Answer 56

• the actor retracts his false statement:
• before completion of the testimony; and
• before it became manifest the falsity of the statement would be exposed

Question 57

When does a person commit Failure to Identify and what is the range of punishment?

Answer 57

1. He intentionally refuses to give his name, address, or date of birth to a peace officer who has lawfully arrested him. (Class C)
2. 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

Question 58

Define “combination” as it relates to engaging in organized criminal activity.

Answer 58

Three or more persons who collaborate in carrying on criminal activities