Select Page

Criminal Law
South Texas College of Law Houston
Moses, Ray E.

Ray Moses, Criminal Law, Fall 2010

General Comments:

I. Purposes of punishment

A. Schools of thought:

1. Utilitarianism: mostly concerned with deterrence, both general (message to society) and specific (preventing individual from future crimes by incapacitation and intimidation). Also concerned w/ rehabilitation (treatment)

2. Retributivism: only goal is to make D pay for his crime. He did it, he deserves it.

3. Denunciation: punishment justified to express society’s condemnation. Has components of both 1 (education of society for deterrence) and 2 (punishment by stigmatization)

II. The Crime: Actus Reus (maybe omission)+ Mens Rea+Causation.

A. Actus Reus (maybe omission) + social harm + mens rea + actual cause + proximate cause.

1. In some cases attendant circumstances required.

a) For example, having sex with a girl is not a crime. Having sex with a 15 year old girl is because she is too young (attendant circumstance)

B. Conduct and Result Crimes

1. Most are conduct crimes which require only conduct and circumstance, e.g., rape, burglary.

2. In result crimes causation must be proven.

a) For instance, there can be no murder without a dead body. The dead body, therefore, is the required result for murder.

b) No causation required in conduct crimes because no result is needed.

III. Defenses

A. A defense will only be submitted to the jury when sufficient evidence is present. A defense is raised to negate one or more elements of the alleged crime. When a defense is raised the burden is on the prosecution to disprove BARD

B. An affirmative defense is raised and requires evidence which D will have to prove (by a preponderance of evidence in TX). With an affirmative defense burden is on defense to prove its validity and prosecution does not have to disprove.

IV. Burdens of Proof

A. Prosecution: must produce evidence for each element of a crime. When burden of production has been met, the evidence will be submitted to a jury who determines whose if P’s evidence is persuasive enough to prove each element BARD (Winship Doctrine)

B. With an affirmative defense D has the burden of persuasion to prove it by a preponderance of the evidence (majority rule)

V. Misc.

A. Legality doctrine: for D to be punished he must have committed a statutory crime and not simply a moral wrong.

1. Moral Wrong Doctrine: in some cases, when MOF negates the general inent required for the crime, that D may be convicted for conduct that would be immoral if the facts were as he believed them to be. D in these cases assumes the risk that his immoral conduct will be considered criminal.

a) Moral Wrong is recognized by CL and MPC, not Texas.

B. Bill of Attainder: special legislation declaring a specific person to be guilty of a crime and subject to punishment without either a trial or conviction.

C. Rule of Lenity: statutes require strict interpretation and ambiguity should be interpreted in light most favorable to defendant.

D. Ex Post Fact: a person cannot be guilty of behavior that was criminalized after it had already been committed.

Actus Reus





Voluntary act or omission to perform an act of which he is physically capable.

Possession counts constitutes actus reus.

Conduct must include voluntary act or omission of act which he is physically capable of performing.

Voluntarily engages in conduct including act, omission, or possession.


Generally there is no legal duty to act to rescue others.

Omission only if there is a duty.

Omission only if there is a duty.

Omission Exceptions

1. Statutory crimes (omission of tax filing)

2. Contractual (babysitter, nurse)

3. Relationship between parties (parent/child)

4. Risk created by actor

5. Voluntary undertaking a duty (starting to aid and then stopping)

Same principle as TX. MPC crimes are found exclusively in the MPC but it is likely that they would prosecute for violation of CL duty.

In Texas duties are imposed by law. This includes statutes, written court opinions, municipal ordinances. Although Texas doesn’t recognize common law crimes, it is likely that TX would allow prosecution for violation of CL duty.

Proving liability for omission

1. Omission accompanied by mens rea

2. Accused was aware of facts–>duty

3. Accused owed duty

4. Causation

5. Performing duty was possible

Some statutorily imposed duties in TX: care of animals, reporting death of prisoner, identifying to an officer, etc.

Involuntary Acts

Involuntary act don’t count toward commission of crime. Includes: sleepwalking, hypnosis (but controversial), reflex or convulsion (but no precautionary measure may–> reckless/negligent)

The following are involuntary and don’t count:

– reflex or convulsion

– Movement while asleep or unconscious

– Conduct during hypnosis

– Any movement that is not product of effort or determination by actor, either conscious or habitual

Mens Rea





1. Specific intent-includes intent/purpose to achieve some future purpose, usually statutory language (“break/enter. w. intent to commit felony”) Prosecution must prove intent, cannot be inferred from conduct.

– Includes all attempt crimes, robbery, burglary, and 1st deg type of murders.

2. Malice-MR of CL

rs proximate cause as it relates to culpable mental states.

MPC also does not address concurrent, superseding, DIC, IIC, or thin-skulled plaintiff

TPC uses the “but-for” test for solo actions or concurrent causes.

Intervening causes

1. Independent (coincidental) intervening cause-one that was not in response to D’s wrongdoing. If the intervening cause is unforeseeable it will relieve D of liability. If foreseeable, then still liable.

2. Dependent intervening cause-one that occurs in response to D’s wrongdoing, e.g., D shoots, V runs away and gets hit by a truck. Generally D is responsible for resultant harm, unless the intervening cause is both unforeseeable and highly abnormal.

If purp/knwg required to achieve result, the actual result must be within purpose or contemplation unless:

– the only difference is V

– Or that more serious harm would have been causes by the original intended act.

If rck/neg. required to achieve result, the actual result must be within the risk D was aware of or should have been aware of unless

– the only difference is V

– Or that more serious harm would have been caused

Causation not established unless the result was the probably consequence of D’s conduct.

Still guilty unless the concurrent cause is sufficient to produce the result and D’s act insufficient.

Modified “but-for” test: would it have happened when and as it did?

Proximate Cause Doctrines:

1) Intended Consequences Rule – an intervening cause may not relieve D of liability when the result was his intended consequence anyway. Ex: D load gun and leaves it on the table planning to shoot V when he sits down on the couch. 3 year old child picks up the gun and accidentally shoots and kills V.

2) Apparent Safety Doctrine – once V reaches a place of apparent safety, chain of causation from D’s actions may be broken. Ex: husband beats wife and she walks through the freezing cold to her parents’ house. She arrives but not wanting to wake them, she sleeps on the porch and freezes to death. Chain probably broken.

Voluntary human intervention – courts will often find causation broken when the intervening cause is a voluntary human decision. Take the above example and consider that the wife’s decision to knock on the door was voluntary.