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

Professor Moses’ Criminal Law Spring 2013

1. Voluntary Act / Actus Reus:

a. Common Law: Voluntary act that causes social harm

i. Habitual acts are considered voluntary

b. Model Penal Code:

i. §2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act

1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.

2. The following are not voluntary acts within the meaning of this Section:

a. a reflex or convulsion;

b. a bodily movement during unconsciousness or sleep;

c. conduct during hypnosis or resulting from hypnotic suggestion;

d. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

c. Texas Penal Code:


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

2. (b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

3. (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 or otherwise provides that he has a duty to perform the act.

d. Misc.

i. Requires concurrence: correct mens rea and actus rea for a crime

2. Voluntary Act Omission:

a. Common Law:

i. Generally: “Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another even if she can do so at no risk to herself, and even if the person imperiled may lose her life in the absence of assistance.”

ii. Exception is when a duty exists:

1. Statute imposes a duty

2. Status relationship: Parent/child, husband/wife, etc.

3. Contractual

4. Voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid OR actor created a risk and then fails to mitigate harm

b. Model Penal Code:

i. §2.01 Requirement of Voluntary Act, Omission as Basis of Liability; Possession as an Act:

1. *** (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:

a. The omission is expressly made sufficient by the law defining the offense; or

b. A duty to perform the omitted act is otherwise imposed by law.

c. Texas Penal Code:

i. §6.01 Requirement of Voluntary Act or Omission

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

2. ***

3. A person who omits to perform an act does not commit an offense unless a law as defined by §1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.

d. Rescue and Bad Samaritan Laws:

i. TPC 38.171: Requires immediate report of a commission of ANY felony which takes place under circumstances in which a reasonable person would believe that serious bodily injury or death may have occurred

1. TPC 261. 109 Tx Family Code: Person commits an offense if the person has cause to believe that a child’s physical or mental health has been or may be aversely affected by abuse or neglect and knowingly fails to report as provided.

e. Five required factors in omission cases:

i. 1) A Legal duty 2) An omission of the duty with necessary culpable mental state 3) In result crimes, casual relationship between omission and result 4) Awareness on part of the actor giving a duty to act 5) Facts reflecting performance of the duty was possible

3. Mens Rea:

a. Common Law:

i. Motive: Relevant for specific intent crimes which by definition require proof of a specific motive.

ii. Types: Knowingly, willfully, negligence/Recklessness, malice, etc.

b. Model Penal Code;

i. §2.02 General Requirements of Culpability

1. Kinds of Culpability Defined:

a. Purposely. If it is his conscious object to engage…and if element involves attendant circumstances he is aware of such or hopes they exist.

b. Knowingly. If he is aware that it is practically certain his conduct will cause a result. .

c. Recklessly: If he consciously disregards a substantial and unjustifiable risk

d. Negligently: If he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

ii. 2.02(7) Willful blindness

1. “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

iii. If statue is silent then mens rea is presumed §2.02(3) purposely, knowingly, recklessly.

c. Texas Penal Code:

i. §6.02 Requirement of Culpability

1. A person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

ii. §6.02(b)(c) If a statue does not have a mens rea: Intent, knowledge, or recklessness suffices to establish criminal responsibility.

d. Specific Intent vs. General Intent:

i. Specific Intent: requires proof that the actor’s conscious object, or purpose, is to cause social harm set out in the definition of the offense.

1. Includes an in

ith me’

iii. Words of the solicitor do not have to be successfully communicated to the solicitee.

c. Texas Penal Code:

i. 15.03: Requesting, commanding or attempting to induce another to engage:

ii. Focus on target crime because its only for felony

1. With intent that a capital felony or felony in the 1st degree

2. Requests or solicits another to engage in specific conduct

iii. If actor attemps the crime then soliciting person is an accomplice

iv. Merger: TX law does not expressly state that one can or cannot be convicted of and punished for both the conspiracy to commit and the substantive offense itself

v. 15.031 Criminal Solicitation of a Minor

8. Conspiracy

a. Common Law:

i. Agreement between two or more persons to do either an unlawful act or lawful act by unlawful means.

1. No actus rea is required the agreement itself is conspiracy

2. Conspiracy ends when the target crime is committed

3. Merged with target substantive crime

ii. Plurality Rule/Bilateral: 2 or more persons with the intent to commit the crime

iii. Wharton’s Rule: CL defense to conspiracy

1. There can be no conspiracy if a crime by definition requires a combination of two persons.

2. Exceptions:

a. If there are 3 persons or a number that exceeds the crime itself then it is conspiracy.

b. The two involved in the conspiracy are not those who the crime actually means.

b. Model Penal Code:

i. 5.03: A person is guilty of conspiracy with another person or persons to commit a crime with the purpose of promoting or facilitating its commission if he

1. Agrees to engage in conduct that constitutes a completion/attempt/or solicitation of crime OR

2. Agrees to aid in planning/commission/attempt/solicitation

ii. Basics:

1. Requires an overt act, unless it is a 1st or 2nd degree felony

2. Conspiracy ends when target crime is committed or agreement is abandoned by the defendant

3. Merger: Allows merger or separate punishment for both.

iii. Elements: (1) Commit an offense (2) attempt to commit an offense (3) solicit another to commit an offense (4) aid another person in the planning or commission of the offense