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Criminal Law
South Texas College of Law Houston
Crump, Susan Waite

She tries to make the questions proportionate to the subject matter of the class.
You must now everything backwards and forwards.
Multiple choice – there will be space on the back to explain an answer to question that seems ambiguous.
180 raw score points, 30 minutes per essay; stick to the time limits.
Texas Penal code – you can paraphrase consent parts of sexual assault.
Look at her outline –
Heavy emphasis on Texas;
Know the Penal code frontwards and backwards

A. Overview of Criminal procedure Reasonable Doubt (In Re Winship)
a. Burden of Persuasion: Govt. must negate any criminal defense beyond a reasonable doubt. Reasonable doubt is not defined in Texas.
b. Burden of Production: burden of interjecting Defense falls on D. These affirmative defenses include such things as mental illness, duress, entrapment, necessity, self-defense, and defense of property.
(1) The Supreme Court held that D need only prove these defenses by a preponderance of the evidence, (i.e. 51%).

B. Basic Elements of all Crimes
1. Actus Reus – The physical requirements for a crime. The law requires a person to commit an unlawful act not just think about doing so. 3 elements:
a. (1)Conduct – a physical act or an ommission
1) voluntary act-
a) Willed or directed by the actor. Need not be intentional but often is, i.e., putting a gun to someones’s head and pulling the trigger.
b) Is not an involuntary act -where actor has no conscious control over the act. This does not include Intoxication. Ex. Sleepwalking, epileptic seizures, as well as unconsciousness.
– (People v. Newton- a reflective unconscious action cannot be a voluntary actus reus. There must be an act of the will)
2) Legal duty and failure to Act- legal duty can be created in a number of different ways:
a) Family Relationship – ex. Parents must provide for children, spouses do not have a duty to obtain medical care for their spouse unless the injured spouse is incapable.
b) Statute- ex. Stop and Render Aid Statutes
c) Express Contract – ex. Lifeguards, nurses, or doctors.
d) Implied Contract– ex. Voluntary assumption of care of someone who cannot care for themselves can create a duty of care under certain circumstances. Failure to comply with a moral duty is not punishable unless made a crime.
-(Davis v. Commonwealth- by taking the victim’s benefits and excluding others from caring for her, the daughter had an implied contract reasonably to care for her mother. She breached it in a grossly negligent manner—Involuntary Manslaughter)

b.(2) Circumstances (Causation)-facts that must exist for certain events to be crimes.
1) Can be that a person has a particular status. Ex. For injury to a child, the victim must be a child under 14.
2) Can be that the crime took place in a particular location. For a person to be convicted of DWI, they must drive intoxicated upon a public roadway.
c. (3) Result – for some crimes, there must be a certain outcome.
1) For a murder, the victim must die.
2) For some aggravated assaults, the victim must suffer serious bodily injury.
d. Defenses:
(1). the actor was physically forced by another to engage in the conduct.
(2). A reflex action by D is not actus reus b/c not voluntary, e.g. crime while having an epileptic seizure or some other convulsion resulting from a physiological disorder.
(3). Unconscious Defense . . . where not self-induced (e.g. alcohol), unconsciousness is a complete defense to a charge of criminal homicide bc/element of voluntary act is not met. also hypnotized.
e.g. A ∆ can be convicted for failing to act only when either:
(1) a statute specifically criminalizes the omission or (2) the failure to act substantially contributes to bringing about an illegal result. Davis v. Commonwealth – starved and froze her mother to death by not feeding her or providing adequate heat.
(3) ∆ had a legal duty to act. Situations in which a legal duty to act include:
(a) Certain relationship duties, e.g., parent to care for a child;
(b) duties imposed by statute. e.g., file taxes by April 15, stop & render aid if your in a car wreck
(c) duties imposed by contractual obligations e.g. a lifeguard or nurse
(d) duty based on voluntary assumption of care (e.g. parent-child, spouse-spouse)
(e) duty arising from the creation of the peril (i.e., if one creates peril, he must render assistance).
(f) duty to control the conduct of others, (e.g. parent’s duty to control a child); and
(g) duty of a landowner to care for invitees
(4.) Breach of Duty:
(a). Intentional breach (malice) . . . if death results from malicious omission of duty . . . murder.
(b). Negligent breach of duty . . . if person is “criminally negligent” in omitting to perform duty . . . involuntary manslaughter.
(c). Criminally Negligent = conduct that must be a reckless nature; failure to perceive it was in a callous disregard for victim’s life & for the probable consequences of the act. (i.e. breach of duty was gross and wanton).
(5). Reckless killing (inv. ms.) but not an intentional killing (murder)

TEXAS PENAL CODE § 6.01. Requirement of Voluntary Act or Omission.
(a) A person commits an offense only if he voluntarily engages in conduct, including an act (bodily movement), an omission, OR possession.
(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.
(c) 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 (failure to act) is an offense OR otherwise provides that he has Duty to perform the act.

2. Mens rea- mental component of crime
2). Common law mental states
a. intent to kill (express malice)
b. intent to cause serious bodily injury & death results(implied malice)
c. depraved heart homicide (implied malice)
d. felony murder (implied malice)
2). Texas Mental States
a. intentionally (conscious desire to cause the result or conduct)
b. knowingly (aware that conduct is reasonably certain to cause a result)
c. recklessly (gross deviation; Aware of, but consciously disregarding a substantial & unjustifiable risk)
d. criminal negligence (gross deviation. Less culpable than recklessly b/c you ought to be aware of the substantial & unjustifiable risk but are not)

(Prof’s Comments)With mens rea, get into the defendant’s mind & try to determine their subjective intent. This is oftentimes difficult to do, especially if direct evidence is unavailable. In that case, you can infer the mens rea from the circumstances & the defendant’s conduct.

-State v. Peery: Flasher case. There was no direct evidence as to his mental state. He did not wave, make faces at, signal, or motion the walkers-by; hence, we can infer that subjectively, he had no intent to expose himself, therefore the mens rea required for conviction is missing. (Intent can be shown by making reasonably inferences from the circumstances as to what the defendant’s subjective state of mind must have been.)

3). Transferred Intent – intent follows harm. Hold everyone responsible for what is foreseeable.
a. Cannot enhance offense if mens rea was not there.
b. Cannot change offense unless reasonably foreseeable to happen.
c. Transferred intent can be used for other offenses other than murder.
d. Only intent can be transferred, not protected status(police) or action.
-(Sanger v. State – For the doctrine of transferred intent to apply, prosecution must show beyond a

t caused the death.
(4). felony murder – D kills victim during commission of an inherently dangerous felony

Reasonable Conduct Unreasonable Conduct depraved heart Intent to kill.

2. Offenses –
a. Intent to Kill: express malice – the desire to brink about the death of another.
b. Voluntary Manslaughter – murder mitigated by heat of passion from adequate cause; reasonable provocation from victim.
1. intentional killing
2. inthe heat of passion
3. From an adequate cause

c. Involuntary Manslaughter – murder through reckless behavior or through gross negligence.
1. Point gun in someone’s direction and accidentally shoot them.
d. Misdemeanor manslaughter – homicide committed during the commission of a Misdemenor (ex. Poaching turkeys). Must be malum in se.
B. Pennsylvania Pattern of Homicide
1. Murder: an unlawful killing with malice aforethought and either express or implied malice
a. Murder in 1st degree:
1. express malice- intent to kill
2. Premeditation/deliberation:
a. conscious desire to cause death
b. Formed before acting
c. D weighed in his mind the consequences of the conduct.

-Commonwealth v. Webster: Prof. of chemistry kills colleague. Evidence such as bones, teeth, etc., show that killing was not accidental but intentional. Malice denotes an action flowing from any wicked and corrupt motive, where the facts show plainly a heart, regardless of social duty, fatally bent on mischief. It may be implied from any deliberate or cruel act against another, no matter how sudden.
– other examples include killing by bomb, poison, lying in wait, torture.
– basically, killing with the specific intent to kill.
– No “plan” required for premeditation & deliberation to be present

b. Murder in 2nd degree: an unlawful killing w/malice but no premeditation
1. malice: (3 types:)
2. no premeditation/deliberation is required
a. b/c frenzied state of mind
c. often impulsive killings:
1. child abuse cases
(EX) Midgett v. State:
1. child abuse by intox. father- his argument, not 1st degree but 2nd b/c not intentional killing
2. Issue: 1st or 2nd Degree Murder? Held, 2nd Degree, b/c he had intent to cause serious bodily injury but death resulted. NO PREMEDITATION/DELIBERATION
– on test argue the facts both ways. For intent to kill argument:
-location of blows
-weight difference

(Prof’s Comments)
– Often will see 2nd degree murder in child abuse cases & impulsive killings
– Keep in mind that using a weapon doesn’t automatically make an act premeditated- depends on how the instrument is used
– When dangerous instrumentality is used, look @ location of the wounds, blows
c. Intent to cause SBI, but death occurs (Midgett)
d. Felony Murder
e. Depraved Heart Homicide- a murder resulting from an extremely reckless intentional act
1. Intentional unlawful felonous act
2. Unlawful extremely negligent conduct
3. reckless indifference to human life
Actus Reus Mens Rea
1. Voluntary Felonious Act. 1. (Implied malice) Extreme recklessness