What Constitutes a Capital Crime in Texas?

The only crime eligible to be labeled “Capital” is murder. Technically there is no “Capital” label but rather Texas Penal Code Section 19.03 is entitled, “Capital Murder.”

Think of Capital Murder as Murder, as defined under Penal Code Section 19.02(b)(1) plus one of the 10 below factors which then makes it Capital. It is important to note that before you can get to one of those 10 Capital factors, we are only dealing with one specific type of murder—intentionally or knowingly causing the death of an individual. Therefore, the murder section where a person is charged with murder for intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes the death of an individual and the section where a person is charged with committing or attempting to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual (the felony murder rule), CANNOT be used to transform a first degree murder into a Capital Murder charge.

The formula then becomes that first—the person must have intentionally or knowingly caused the death of an individual—if it was done recklessly or with criminal negligence, it CANNOT be used in a Capital Murder prosecution.

Then we get to any one of the other 10 factors which the State can rely upon to make the Murder case into a Capital case.

Those factors are:

(1) The person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman. From a defense perspective, it is important to note that it is not just the murder of a peace officer or fireman. If that individual was not acting in the lawful discharge of an official duty (for example, the peace officer or fireman was off duty and at a party with friends), that could be one defense, Also, the accused must know the person is a peace officer or fireman, From a defense perspective, if the person is in civilian clothes (not in unform) and serving as an undercover officer and the accused did not know the person was a peace officer, that could be another defense;

(2) The person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6). This last section excludes terroristic threats under subsection (2) that place any person in fear of imminent serious bodily injury;

What distinguishes this from the felony murder rule above is that the accused must have intentionally or knowingly caused the death of the other individual while committing one of the specified acts—not just that while committing the act the accused committed an act clearly dangerous to human life—that would fall under the Murder statute;

(3) The person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.

This is the scenario where someone hires a “hitman” to kill another person—murder for hire. Both the “hitman” and the person who hired him can be charged with Capital Murder;

(4) The person commits the murder while escaping or attempting to escape from a penal institution;

(5) The person, while incarcerated in a penal institution, murders another:

• (A) who is employed in the operation of the penal institution; or
• (B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;

(6) The person:

• (A) while incarcerated for an offense under this section or Section 19.02 (murder), murders another; or
• (B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 22.04 (Injury to a Child, Elderly Individual or Disabled Individual), 22.021 (Aggravated Sexual Assault), or 29.03 (Aggravated Robbery), murders another;
• [This prong seems to have chosen these offenses at random as they include some serious offenses and omit others]

(7) The person murders more than one person:

• (A) during the same criminal transaction [remember, these must be intentionally or knowingly]; or
• (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;
• [So, if I had a list of people I wanted to kill and I committed the offenses over several different days, that should qualify];

(8) The person murders an individual under 10 years of age;

(9) The person murders an individual 10 years of age or older but younger than 15 years of age; or

(10) The person murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

This is the complete list. Therefore, sometimes you may hear that people think that because a murder is particularly violent, or occurred in a certain way, that the offense is a Capital Murder. Unless it fits into one of the prongs above, it is murder. Only murder plus one of the prongs above constitutes Capital Murder.

The penalty in the State of Texas for Capital Murder is death, or if the State does not seek the death penalty, is life without parole.

These cases are very complicated and will often involve numerous experts including forensic psychologists, DNA experts, firearms/tool mark experts, crime scene reconstruction experts, pathologists and others.

We have experience with these cases. We have worked several murders and Steve Brand has obtained Not Guilty Verdicts in 2 murder cases, has had a Capital case dismissed and another murder case dismissed. Note that results will vary depending on the facts of the case but the results should show the amount of work and attention to detail our firm exerts on these cases.