Spring 2006
I. Criminal Liability
A. There is no moral blameworthiness unless there is an understanding or conscious state. Proof of criminal intent.
B. Two concerns for criminal liability
1. What does the prosecution have to prove?
2. What, if any, defensive matter that D has to raise?
C. Start with the statute. What does it say about the four elements.
1. act and conduct
2. result
3. mental state
4. circumstances that must have existed.
REQUIREMENT OF AN “ACT”
II. General Requirement of an “Act”
A. Need for Act to be Voluntary (Mercer)
1. general principle of voluntary action needed for criminal liability, which requires consciousness.
2. General Rule: requirement of a voluntary or conscious act. If D states the possibility, then must be addressed by the jury. Then P must prove there was a voluntary and conscious act.
3. Exceptions
a. rule that if unconsciousness caused by something discussed in another doctrine. Ex. Intoxication.
b. unconsciousness caused by the person’s own blameworthiness. Ex. Fight knocks him unconscious.
c. performing an act that may lead to some harm when the person knows that he is subject to black-outs. He is aware of the risk; therefore, a voluntary act.
4. Texas Penal Code.
a. elements of criminal liability.
i. §6.01: a voluntary act
ii. §6.02: required mental state
iii. §6.04: causation
b. questions regarding what voluntary means?
i. start with plain meaning
ii. history of statute
c. approach to legislative intent
i. words of statute
ii. history
iii. policy considerations
iv. other statutes/ parts of the code
v. prior law
d. Defense v. Affirmative defense
i. default provision: §2.03(e).
ii. if not addressed or labeled under the scheme of the statute, then it is a defense to prosecution, who will then have to disprove beyond a reasonable doubt.
iii. affirmative defense: D has to prove with a preponderance of the evidence.
B. Defining the Required Act. (Starfield)
1. Must read into statute
2. Statute may cover cases that are broader than legislators intended. Modify legislative intent, define risk-creating situation.
3. Value of precision of statute.
a. violates constitutional due process if statute is too vague.
b. notice to potential D = a reasonable person can tell from the statute that what is being done is a crime.
c. sometimes statute is so broad, it invites wide application and people do not know what is a crime.
d. statute needs to be narrowed with judicial construction.
III. Liability for Failure to Act (Pestinikas)
A. General Rule: a legal duty to act is required. Does legal duty include a duty established by a K?
B. 3 ways to legal liability
1. statutory
2. legal duty
3. assumed care and control
C. 2 possibilities of omission: §6.01c
1. omission is an offense if a law required action
2. provides that a person has a duty to perform an act
IV. Crimes with Specific Requirements
A. Larceny (Olivio) TX PC: §31.03
1. a consolidation of major property offenses: embezzlement, false pretenses, receipt of stolen property.
2. Requirements of the general crime.
a. take property
b. from an owner
c. with intent to deprive permanently
3. Requires an action, not just an evil intention. “Crime is not committed until he has complete dominion over the item?”
4. Behavior shows an intention to deprive: the real function of the crime. A built-in aspect of asportation.
5. TX PC requirements
a. appropriate property: exercise control.
b. with intent to deprive
c. unlawfulness
6. Question about “control” and its meaning = no case in TX where control was an issue when state shows an intent to deprive.
B. Embezzlement (Williams) TX PC §31.03
1. conversion: the taking was not wrongful. There was a legitimate possession to begin with and then a wrongful use of the property.
2. TX: requirement of intent to permanently deprive the owner.
3. Also §32.45: conversion: misapplies property in a manner that involves substantial risk of loss to the property.
C. False Pretense (Pollard) TX PC §31.01
1. obtaining property by misrepresentation of presenting a check that is good, but is actually bad.
2. the act itself
c. has to be reasonable.
d. TX PC §31.10: Claim of Right: you can steal your own property. if you think you own it, you are not depriving a person their property.
F. Burglary (Gauze) TX PC §30.02
1. Common law: entry by breaking in a dwelling of another at nighttime with intent to commit a felony.
2. crime expanded to get rid of some of the requirements under the common law.
3. statute intended to protect your privacy and safety where you live.
4. many modern statutes have a consent requirement
5. burglary: entry that underlies the security of a person’s living situation.
6. TX requirements
a. enter a habitation with intent to commit a felony or theft without the effective consent of the owner.
b. entry: can be part of the body or sometimes an instrument that is connected to the body.
7. scope of crime has been expanded in various ways: includes vehicles, difficult to define entry.
8. does fraud include concealment of intent to commit a crime – makes consent ineffective?
a. plaintiff needs to deal with intent of D at time of entry into dwelling.
b. Pre-TX PC: lack of effective consent because of the concealment of intent.
G. Assault (Mihas) TX PC §22.01
1. elements of attempt assault
a. attempt to commit battery; intent to commit battery
b. threatening: intent to either injure or frighten.
2. usually subject to an objective standard: regardless of his intent, would a reasonable person find the behavior threatening?
3. TX requirements
a. causing injury: requires an injury, some touching
b. threaten: with imminent bodily harm = unfortunately, threaten is not defined.
offensive touching: some application of force, a touching with no injury, but offensive.
