Criminal law defines conduct that is prohibited by the government and the range of penalties that can be imposed for violating these laws. Persons who violate criminal laws incur penalties including fines, imprisonment and, in some states such as Texas, execution. All crimes are defined by statutes, which are organized into books of rules known as criminal or penal codes. The federal government has a criminal code that regulates certain crimes nationwide, and the Texas criminal statutes are collected into the Texas Penal Code. Most criminal activity violates either a state law or a federal law, not both; an important exception is drug crimes, which can be prosecuted in either state or federal court or both.
Every crime is defined by a list of elements. In a criminal trial, the prosecutor attempts to prove all the elements of the crime the person is accused of committing. If the judge or the jury decides all the elements of the crime have been proven, the accused person is guilty of the crime. If the prosecutor cannot prove all the elements, the accused will not be found guilty of the crime.
Attempt, Conspiracy, Aiding & Abetting
Anyone who, with intent to commit a crime, takes a substantial step toward committing the crime may be guilty of attempt to commit a crime. Merely thinking about committing a crime, or even preparing for it, is not a crime. There must be a substantial step. For example, if someone buys a gun with intent to kill another person, the act of buying the gun is mere preparation. However, going to a person’s house after buying a gun with intent to kill the person may be a substantial step that is enough to charge a person with attempting to commit a crime.
The law of conspiracy and the law of aiding and abetting are other general doctrines that apply to a wide range of offenses. A conspiracy is an agreement between two or more persons to commit a crime. For example, if three people conspire to commit murder, at least one of them takes action to further the conspiracy, and the murder actually occurs, they can all be charged with both conspiracy and murder. Even if a conspirator backs out of the conspiracy, but the other conspirators commit the crime, all conspirators may be criminally liable if the acts were reasonably foreseeable.
A person who intentionally aids or advises another in committing a crime may be guilty of aiding and abetting, and may be criminally liable for the acts of the other person, as well. Thus, if someone intentionally advises another how to commit robbery and lends the robber a car to use in the getaway, both people are equally liable under the law.
Criminal codes penalize a variety of activities. Generally, an offense is any violation of the Texas Penal Code. The Penal Code divides offenses into two major categories: felonies and misdemeanors. Felonies are crimes for which a person may be sentenced to imprisonment in the state institutional division or to death. Misdemeanors are lesser crimes for which a person may be sentenced to imprisonment in a jail and/or a fine. The most violent crimes, such as murder and rape, as well as so-called white collar crimes, generally are felonies under the Texas Penal Code.
Homicide is unlawfully causing the death of an individual. There are four types of homicide: murder, capital murder, manslaughter, and criminally negligent homicide. Most forms of homicide are felonies.
Murder is causing the death of an individual under any of the following circumstances:
By intentionally or knowingly causing the death
By intending to cause serious bodily injury and committing an act that clearly endangers human life
While committing a felony and committing an act that clearly endangers human life
While fleeing from committing a felony and committing an act that clearly endangers human life
Murder is divided into subcategories by degree of seriousness. If the defendant commits any of the above acts, he or she will be charged with murder. At the sentencing stage of the trial, if the defendant is able to prove he or she committed the murder while immediately influenced by sudden passion, and that the passion arose from an adequate cause, the defendant will be sentenced for murder of the second degree. Otherwise, the sentence is for murder of the first degree.
Capital Murder is similar to murder. A person convicted of capital murder will receive a death sentence. Capital murder is murder under any of the following circumstances:
- Murder of someone the defendant knows is a peace officer or fire fighter acting in his or her official capacity
- Murder committed intentionally during an aggravated sexual assault, arson, burglary, kidnapping, obstruction, retaliation, or robbery
- Murder for pay
- Paying another to commit murder
- Murder while escaping from prison
- Murder while incarcerated, if the victim is a prison guard or the defendant is incarcerated for aggravated robbery, aggravated sexual assault of a child, or murder
- Murder of more than one person at once or during the same scheme or course of conduct
- Murder of a child under the age of six
If the jury in a capital homicide case does not find the defendant guilty beyond a reasonable doubt, the charge may be reduced to murder or another lesser offense.
Manslaughter is defined as recklessly causing the death of a person. Manslaughter is a felony of the second degree. Criminally negligent homicide is a state jail felony, and is defined as causing the death of an individual by criminal negligence.
Under Texas law, assault is a misdemeanor; however, assault becomes the more serious crime of aggravated assault if the offender uses a firearm or other deadly weapon, the assault causes serious bodily injury, the assault is in retaliation against a witness or informant, or the assault is against a government employee acting in his or her official capacity. Generally, assault is defined as intentionally, knowingly, or recklessly injuring or threatening to injure a person or the person’s spouse. Additionally, assault includes intentionally causing physical contact with another person if the offender knows the physical contact will be offensive to the victim. In one Texas case, the defendant argued that he should not be convicted of aggravated assault because the knife he used was not a deadly weapon. However, a physician testified that the knife had caused a six-inch wound and cut through the victim’s rib cage, and certainly was capable of causing death. Because the defendant could not offer enough evidence to prove otherwise, his conviction for aggravated assault was affirmed.
Criminal sexual assault–also known as rape–is a felony that carries with it severe penalties. Sexual assault is intentionally or knowingly penetrating the anus, female sexual organ, or mouth of another person, without that person’s consent. Under the law, the victim is said not to have consented to the actions if the assault is under one of the following circumstances:
- The victim is unable to consent or to resist because of a mental disease or defect
- The victim is physically unable to resist, unconscious, impaired by ingestion of a substance forced on the victim by the defendant, or unaware that the assault is occurring
- The assailant uses force, violence, or a threat of force or violence against the victim or against another person
- The defendant is a government official or employee who coerces the victim to submit or participate
Texas law does not distinguish marital rape from general sexual assault.
If the victim is a child under the age of 17, the law presumes the child cannot consent, so any penetration of the child’s anus, mouth, or female sexual organ, or causing the anus, mouth, or sexual organ of a child to contact that of another person, is sexual assault. However, if the child is 14 years of age or older and the defendant is no more than three years older than the victim, then there is no crime.
Aggravated criminal sexual assault is first degree felony criminal sexual assault under aggravated circumstances. If the defendant causes or threatens kidnapping or serious bodily injury, threatens death or tries to kill the victim, sexually assaults a child under the age of 14, or uses a deadly weapon, the defendant will be charged with aggravated sexual assault.
Kidnapping is a felony in Texas. It is defined as intentionally abducting another person. Abducting is defined further as restricting a person’s movement and interfering with his or her liberty by moving the person from one place to another or confining the person, and holding the person in a secret place where no one is likely to find him or her. Abducting usually involves deadly force or the threat of deadly force.
Federal Drug and Gun Laws
Federal laws contain harsh penalties for distributing controlled substances, especially if firearms are even remotely involved. For example, any person who possesses with intent to distribute five grams of crack cocaine is subject to a mandatory sentence of five years without parole. If a gun is available for use or is being carried during a drug transaction–even if it is not used–a mandatory five-year sentence must be imposed consecutively to a conviction for the drug offense. Thus, the person with five grams of crack cocaine with intent to distribute would receive a mandatory ten- year sentence without parole if there was a gun on the premises. In most circumstances, federal judges may not depart from these mandatory sentences. Penalties for controlled substance offenses become even harsher as quantities of the contraband increase.
Crimes Causing Harm to Property
Depending on the value of the property involved, as well as the level of violence, most property crimes fall into the category of felony in Texas. The legal definition of theft is unlawfully taking the property of another person with the intent to deprive the other person of the property. This definition is much broader than what most people think of as theft. It includes embezzlement, keeping found property without making a reasonable attempt to find its rightful owner, obtaining the services of another person or telecommunication services by fraud, shoplifting, unauthorized access to credit cards, and writing bad checks.
Robbery is similar to theft; in fact, theft is a part of robbery. A person commits robbery if, during a theft, he or she intentionally, knowingly, or recklessly causes bodily injury to another person, threatens a person, or places another person in fear of immediate injury or death. Aggravated robbery, which is a felony of the first degree, is a robbery in which a person is seriously injured or in which the defendant uses a deadly weapon. If the robbery causes fear of immediate injury or death to a victim who is 65 years of age or older, or who has a mental, physical, or developmental disability, the crime also constitutes an aggravated robbery.
Burglary is entering into a building, portion of a building, or habitation with the intent to commit theft or a felony there. Not only is it burglary to enter a house unlawfully with the intent to steal money or property, but it is also burglary to enter with the intent to commit a felony such as arson or murder.
White Collar Crimes
Although there is no fixed definition of white collar crime, a number of nonviolent crimes frequently are grouped together as white collar crimes. The term “white collar crime” generally is used to describe crimes that have cheating or dishonesty as their common basis. These crimes typically are committed by professionals or entrepreneurs under cover of legitimate business activity. Such crimes may be difficult to prosecute because of their complexity. Often they carry lesser penalties because they are not associated with violence. However, defendants convicted of white collar crimes may incur enormous fines, be ordered to pay restitution, or spend time in jail. Today, there is a trend toward stricter punishment for white collar crimes, as people recognize the financial damage white collar criminals inflict on society.
As a practical matter, it is impossible to describe every activity that fits within the definition of white collar crime, because white collar crime takes many forms. Some criminal actions are prohibited by specific laws narrowly drawn to outlaw a particular activity. Other actions are not covered by specific laws but instead are prosecuted under one or more “catch-all” laws criminalizing dishonest behavior generally.
Federal law and Texas law both prohibit bribery. The purpose of most bribery statutes is to prevent people from seeking preferential treatment from public officials and to prevent public officers from using their offices for personal gain. Specifically, if a government official is offered or seeks anything of value for himself or herself in exchange for performing an official act, a fraudulous action, or any action in violation of his or her official duty, the elements of bribery may be met.
Computer crime is an area of the law in which the government appears to be playing catch-up with the growth in new technologies. Some variations of computer crime are so new that there are no specific laws to address them, and general laws in existence do not seem adequate in proscribing the particular illicit activities.
Generally, conduct specifically outlawed by federal statute includes an intentional or knowing access of a computer to obtain confidential national security information, financial information of a financial institution or of a credit card issuer, information of a federal department or agency, or to commit fraud.
Texas law also recognizes the computer crimes of breach of computer security and harmful access. A person commits breach of computer security by knowingly accessing a computer without the consent of the owner, or intentionally or knowingly giving a password, identifying code, personal identification number, debit card number, bank account number, or other confidential information about a computer security system to another person without effective consent. If the offender intended to obtain a benefit or to defraud or harm another by the breach of computer security, the crime is a state jail felony if the benefit or loss is less than $20,000, and a felony of the third degree if the benefit or loss is $20,000 or more.
In addition, it is unlawful under Texas law intentionally or knowingly, and without authorization, to damage or destroy a computer, cause a computer to interrupt or impair a government or public operation, use a computer to tamper with official records, introduce false information into a computer system to alter credit records, cause a computer to alter or erase a negotiable instrument, or introduce a computer virus into a computer. Depending on the amount of loss, harmful access to a computer is a crime ranging from a felony of the second degree to a Class A misdemeanor.
To embezzle means to take another’s money and property through abuse of an official job or position of trust. Embezzlement can take many forms. An accountant might use sophisticated methods to falsify records and skim profits. A bank teller might walk home with an extra $20 from his or her drawer. Both of these actions constitute embezzlement.
The crime of making false statements is not specific to white collar criminals, but this crime is broad enough to encompass activities that might not be unlawful if not for associated false statements. To convict someone of false statements requires proof of a statement made willfully and knowingly that contains a false material fact or conceals a material fact.
Fraud is intentionally lying in order to induce someone into relying upon the lie to part with something of value. Like embezzlement, fraud can be either complex or simple. The federal government has three general anti-fraud statutes for mail fraud, bank fraud, and wire fraud. Mail fraud has two elements: (1) a scheme devised or intending to defraud or for obtaining property or money by fraudulent means, and (2) using the mails in furtherance of that fraudulent scheme. The “scheme to defraud” element of mail fraud is deliberately broad. It encompasses a wide variety of criminal activity, including credit card fraud, securities fraud, medical drug fraud, and frauds based on political malfeasance. Because the mail fraud statute uses such broad language and because it is relatively easy to prove, mail fraud is one of the most common charges brought by federal prosecutors. Charges of mail fraud frequently are made even in cases in which more specific crimes have been charged.
The federal wire fraud statute is similar to the mail fraud statute, but requires an interstate or foreign transmittal of a communication by wire, radio, or television. The federal bank fraud statute criminalizes the conduct of any party who “knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, by means of false or fraudulent pretenses, representations, or promises.”
Obstruction of Justice
Obstruction of justice is interference in one of the three branches of government. Obstruction of justice can take many forms, including assaulting a process server, improperly influencing a juror, stealing or altering a record of process, and obstructing a criminal investigation by officers of a financial institution. Picketing, parading, or using sound amplification devices in front of a courthouse, building or residence occupied by a judge, juror, witness, or court officer may be prosecuted as obstruction of justice.
Federal perjury laws penalize anyone who willfully or knowingly makes false statements under oath. The sworn statements may be written or oral and need not be made in court; a person may perjure himself or herself in deposition or written testimony. A related law against subornation of perjury makes it illegal for anyone to procure another person to commit perjury.
Often, a person charged with other white collar crimes is accused of committing a tax crime also. Failing to file a tax return or filing a false tax return is a crime, as is interfering with the administration of the internal revenue laws. Specific laws prohibit obstruction, extortion, or bribery with regard to a tax official.
Defenses and Punishment
In some criminal trials, the prosecutor proves all the elements of a crime but the person accused is not punished because he or she has a valid defense.
Self-defense sometimes is used as a defense. The general rule for self-defense is that a person may use any amount of force except deadly force that he or she reasonably believes is necessary to prevent immediate unlawful harm to a person. Using deadly force is permissible only when it reasonably appears to be necessary to avoid immediate death or serious injury to a person, or to prevent the commission of a felony in the actor’s dwelling. If a person claims that he or she acted in self-defense, the prosecutor must prove beyond a reasonable doubt that self-defense was not the reason for the crime.
By itself, intoxication is not a defense to a crime. In rare cases, intoxication works like a defense, if there is proof that the person accused of the crime was unable to form the necessary intent to commit a crime. Someone who is intoxicated may not be found guilty of a crime that requires he or she acted intentionally, but the intoxicated person may be guilty of another crime that does not require intentional actions.
In the area of white collar crime, the same defenses are available to defendants as those available in crimes generally. Some people accused of white collar crimes also claim entrapment by the government; they argue they were induced to act, and would not have acted unlawfully otherwise. Another common defense by businesses is that a particular businessperson was acting alone, without the authority of the company behind him or her. Businesses further argue that once it was discovered that an officer or employee was acting unlawfully, the business acted immediately to resolve the situation. Sometimes a business avoids criminal liability altogether if it shows that it took proper action to correct a situation as soon as managers were made aware of a problem.
Felonies and white collar crimes carry the strictest punishments, such as lengthy imprisonment, heavy fines, or death. Federal sentencing guidelines contain a method for calculating fines to be paid by organizations that commit crimes. Businesses that are found guilty of operating for a primarily criminal purpose incur fines equal to their total assets.
Texas law also allows courts to forfeit property, dissolve a corporation, cancel or suspend a license or permit, remove a person from office, or impose a citation or civil penalty. For example, a person convicted of a crime involving controlled substances must forfeit the controlled substances as well as any property used to further the crime.
Crime Victims’ Rights
Crime victims have rights in the Texas criminal justice system. Under the Texas Crime Victims’ Rights law, victims of sexual assault, kidnapping, aggravated robbery, or any other crime causing bodily injury, or the close relatives of someone killed by a criminal act, have rights that include the right to:
- Information about services, including compensation
- Access to counseling, assistance, and other victim services
- Privacy and, to the extent possible, confidentiality of identity
- Basic information about the case, such as the case number and assigned court
- Consideration by the judge of a Victim Impact Statement, in which the victim describes the impact of the crime on the victim and his or her family
- Notification about scheduled court hearings and plea agreements, and to be present at public court proceedings
- Notification about the escape from imprisonment of the person convicted of the crime
Victims of sexual assault also have the right to payment for medical examinations.
Some crime victims also have a right to compensation for the crimes committed against them. This means that under the Texas Crime Victims’ Compensation Act, a victim of a violent crime may receive compensation for certain expenses or losses, such as medical expenses or loss of support if the crime victim becomes unable to support dependents. There are requirements that must be met for a victim to get reimbursement. Victims must report the crime within 72 hours of its occurrence. They must cooperate in the investigation and prosecution process, and cannot be responsible in any way for the crime. They must file a claim for compensation with the Texas Attorney General’s Office within one year of the crime. The attorney general reviews and investigates the application and may award a cash payment, referral to a state agency for vocational or rehabilitative services, or provision of private counseling services. Compensation usually is not awarded if the victim received payment already from the offender by way of restitution, or through another source such as insurance proceeds. The total amount a victim may receive is $25,000.