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Criminal Law
University of Texas Law School
Dix, George E.

Criminal Statutes and Elements of Criminal Liability
G/R 1: [(act + state of mind) — causation ® results] + attendant circumstances = liability
Criminal Cases – brought by State, not by individuals
Criminal Liability – fines, imprisonment, death, etc.
-harshest penalties go to most morally reprehensible acts
Consequence -serves Public Good (deterrent, justice, protection of peace, safety)
A. Ascertainment of Elements of Offense
-what does prosecution have to prove?
1. Act (TPC § 6.01) 4. Results
2. State of Mind (TPC § 6.02-3) 5. Attendant Circumstances
3. Causation (TPC § 6.04)
B. Ascertainment of So-Called “Defenses”
-means of disproving elements of offense
C. Consideration of Defenses in the True Sense
-matters which, if established, prevent or reduce liability despite proof of allegations of offense

II. General Requirement of an “Act” – defining the offense (done by statute)
A. Act (TPC § 6.01)
1. Need for Act to be Voluntary – Mercer
a. acts must be voluntary/conscious
b. w/o contrary ev. act is assumed to be voluntary
c. Unconsciousness is not an Affirmative Defense against voluntary acts
-transfer of blameworthiness
-source of unconsciousness (these may represent alternative Defenses)
-voluntary intoxication (therapy)
-mental defect or disease (insanity) (mental institution)
-physical defect (epilepsy) (medication)
-voluntary fighting
d. prior knowledge may shift time of culpable. mental state (liability maintained)
-awareness of risk leads to responsibility
e. Does Voluntary = Conscious?
1.) Legislative Intent – asserting responsibility to legislature
a.) Wording of Statute – language (absurd result exception)
b.) History – background/what legislature said
-law abhors change – consider prior law (pre-Code)
c.) Policy Consideration – objectives of Code
-language and terms limit good ideas
d.) Other Parts of Codes/Statutes – avoid redundancy and empty language
-words must have substance
2.) Criminal Procedure
Pleading Raise Prove
Elements of Crime P Yes No P-BRDoubt
Exceptions P Yes No P-BRDoubt
Defense *-Mercer P No D by some ev. P-BRDoubt (only if raised by D)
Affirmative Defenses P No D by some ev. D-Preponderance
* If D raises issue, P must prove consciousness BARD
*D gets jury instruction if raised
2. Defining Required Act – Starfield
a. defining done in statute by legislature
-includes act and culpable mental state, if any
b. common understanding is often cause for omission of definition from statute
c. note broadening of statute liability and application (driving ® operating* ® being in actual
physical control ® being in physical control) * Texas application
d. Constitutionality
1.) if statutes not precise (vague), represents violation of due process
2.) must be consistently applied
3.) notice must be given precise enough that reasonable person would know to avoid.
4.) must involve culpable mental state if not strict liability crime
5.) Ct may adjust interpretation of statute to make constitutional
a.) defining by case law to avoid surface vagueness
b.) increases consistency and helps serve as notice
c.) interpretation can lead to change in application
B. Liability Based on Failure to Act – Pestinikas
G/R 2: omission can lead to liability
1. Sources:
a. Statutory Duty – tax returns, traffic law, accident laws
b. Legal Duty – any source (K, parental, guardian, etc.)
-Was K binding? common issue in assigning criminal liability
c. Assumption of Duty – certain relationships involving care/custody/control
(guardian, parent, spouse, employee/employer, etc.).
-being subsumed into legal duty
d. Creation of Peril – jeopardizing safety of others, violation of duty owed to community, creation of
outrageous risk of harm to others imparts a malice aforethought culpable mental state
1.) purposefully placing another in peril is clear liability
2.) cts split on accidental placing of another in peril
3.) providing safety to guests (trend)
2. Defenses:
a. Capability – if incapable, no liability (inconvenience is not enough)
b. unaware of duty – lack of mental state; Ignorance of Fact
c. lack of notice – violation of due process; Ignorance of Law
3. Criticism:
a. risks lack of notice
b. expands liability
c. should be narrowly construed b/c some crimes preclude omission
4. Texas Penal Code (TPC § 1.07, 6.01, 22.04)
a. Prosecution usually based on act rather than omission
-easier to prove neg. due to presence of culpable mental state
b. § 6.01 omission not offense unless § 1.07 or in violation of legal duty
1.) legislative reluctance to expand liability for omission
2.) requires violation of statute or legal duty (as indicated by ct)
c. § 22.04 – elderly, child and disabled persons protection clause
1.) omission can serve as source of injury
2.) reasonable person objective test to provide notice and source of duty
3.) provides culpable mental state through knowledge of potential risk of injury (intentional
or knowingly)
-accompanied by severe penalties
4.) Affirmative Defenses of notification and appropriate medical care
III. Specific Offenses
A. Property Acquisition Offenses: consolidated under Theft (TPC § 31.02)
1. Elements
a. Unlawfully
1.) w/o owner’s effective consent
a.) use that is inconsistent w owner’s agreement
-K, where applicable, defines scope of consent
b.) increase in risk of loss to owner
2.) done by deception, coercion, or taking advantage of owner’s situation
-protection of elderly, disabled, insane, minors, intoxicated
3.) done knowing that property was stolen
-criminalizing trafficking in stolen goods
b. Taking/Appropriating – bring about transfer; extent of control unclear
1.) asportation (Common Law) – simple movement may be en

ed or be contemporaneous to taking b.) must be imminent – of immediate injury
-future threats are immaterial
c.) must meet objective standard
(1.) reasonable person would have been placed in fear
-exploiting weakness(es) of victim may change standard of
person used
(2.) determined by conduct of criminal
(3.) timidity of victim does not matter
d.) must be done intentionally or knowingly
b. Problems:
1.) when completed
-immediate flight dilemma
2.) defining sufficient force
-pain is sufficient
3.) force must be connected w theft
4.) expansion of liability to purse-snatching and pick pocketing
-cts reluctant due to severity of penalties on minimal use of force
c. Policy – incentive to not injure or use force during theft
d. Texas Penal Code § 29 (Robbery) – Theft is a lesser included offense
1) Force used during course of committing Theft
-difficult to show end point of commission
2.) force shown by:
a.) injury – physical pain or physical impairment
-tug-of-war case
b.) threat w injury – regardless of whether successful
c.) placing victim in fear of imminent danger
7. Extortion – Harrington
a. threat + intent to gain against target’s will (blackmail)
-lacks imminence of Robbery
1.) threats:
a.) to accuse
(1.) + pursuit of criminal charges
(2.) + disclosure to others of accused act
(3.) regardless of whether true or false
b.) of future harm
c.) to property
2.) intent to gain something of value
a.) service or some other action against target’s will
b.) property (money, real estate, possessions)
3) done maliciously (malicious is ambiguous ® normally intentionally and w/o
b. Defenses
1.) Mistake of fact – TPC § 8.02
2.) Duress – TPC § 8.05
3.) Claim of Right – allowed in some, but not all, jurisdictions
-not allowed in Texas (repetition due to lack of intent)
a.) legal right to property (reasonable belief – objective test)
b.) acting non-maliciously (good faith – objective test)
c.) must be w/i scope of legal right (specific + reasonable terms)
c. Policy – combination of two otherwise lawful acts (accusation and pursuit of property) becomes
criminal b/c of imbalance in bargaining power
d. Texas – under Theft (TPC § 31.02) due to element of Coercion (TPC § 1.07)
1.) threat to commit an offense