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Flashcards in Texas Penal Code Deck (96):
1

Regarding voluntary act, what constitutes possessoin?

PC 6.01
sufficient if aware of his control for sufficient time to terminate control

2

Does an ordinance require culpable mental state?

PC 6.02
Only if it exceeds $500 fine

3

What is required for causation of criminal conduct?

PC 6.04
"But for" conduct (alone or in concert) UNLESS concurrent cause was clearly sufficient to produce result and conduct of actor clearly insufficient

4

Explain transferred intent?

PC 6.04
If only disconnect in causation between intended conduct and intended result is: different offense; or different injury THEN transfered intent.

5

When is someone criminal responsible for another's conduct?

PC 7.02
1. has required mental state AND causes an innocent in commision;
2. acting with intent to promote or assist - solicits, encourages, directs, aids, or attempts to aid other in offense;
3. legal duty to prevent, but doesn't
4. Responsible for all conspirators actions in furtherance of conspiracy and "should have been anticipated'

6

TX A person commits the offense of Engaging in Organized Criminal Activity under Pen. 71.02 if?

A person commits the offense if with the intent to establish, maintain or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:
1. Murder,. Capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery,. Deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle or unauthorized use of a motor vehicle;
2. Any gambling offense punishable as a Class a misdemeanor;
3. Promotion of prostitution, aggravated promotion of prostitution or compelling prostitution;
4. Unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
5. Unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception; 5-a; causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, title 3, Occupations code;
6. Any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
7. Any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
8. Any felony offense under Chapter 32;
9 any offense under Chapter36;
10 any offense under Chapter 34, 35, or 35A;
11. Any offense under Section 37.11(a);
12. Any offense under Chapter 20A;
13 any offense under Section 37.10;
14. Any offense under Section 38.06, 38.07, 38.09, or 38.11;
15 any offense under Section 42.10;
16. Any offense under Section 46.06(a)(1) or 46.14;
17. Any offense under Section 20.05; or 18. Any offense classified as a felony under the Tax Code.
Tex. Penal Code 71.02(a)

7

TX What is the punishment for Engaging in Organized Criminal Activity?

An offense is one category higher than the most serious offense listed in 71.02(a) that was committed. If the most serious offense is a Class A misdemeanor, the offense is a state jail felony.
Except if the offense is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for:
1. life without parole, if the most serious offense is an aggravated sexual assault and if at the time of that offense the defendant is 18 years or age or older and A. the victim of the offense is younger than six years of age; B. the victim of the offense is younger than 14 years of age and the actor commits the offense in a manner described by Section 22.021(a)(2)(A); or C. the victim of the offense is younger than 17 years of age and suffered serious bodily injury as a result of the offense; or
2. life or for any term of not more than 99 years or less than 15 years if the most serious offense is an offense punishable as a felony of the first degree, other than an offense described by 1 above.
Conspiring to commit an offense under 71.02 is of the same degree as the most serious offense listed in 71.02(a) that the person conspired to commit.
If at the punishment stage of trial the defendant is able to prove by a preponderance of the evidence that in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in 71.02(a) and made substantial effort to prevent the commission of the offense, the offense is the same category of offense as the most serious offense listed in 71.02(a) that is committed, unless the defendant is convicted of conspiring to com,mit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.
TX. Pen. Code 71.02(b)(c)(d)

8

TX Is a defendant susceptible to capital punishment when the “offense” that the defendant “commits” as a member of a criminal street gang is capital murder an offense enumerated in 71.02(a)(1)?

Capital punishment is not available when a defendant is found guilty of engaging in organized criminal activity under Penal Code Section 71.02 when the offense committed is capital murder. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

9

TX Does it violate Double Jeopardy to try and punish the defendant in a single proceeding for both the capital murder offense and the organized criminal activity offense?

No Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

10

TX How many parts are there to the mental state requirement for the offense of engaging in organized criminal activity?

Two. One mental state requirement is included in the commission of one of the enumerated offenses in TX Pen. Code 71.02. The second mental state requirement is that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination. The proof must consist of more than evidence that a combination existed and that the defendant committed one of the enumerated offenses; the evidence must support a finding that the defendant intended to establish, maintain, participate in, or participate in the profits of a combination. Hart v. State, 89 S.W.3d 61, 63-64 (Tex. Crim. App. 2002).

11

TX Does an inconsistency exist in requiring that an accused personally commit an overt act to support conviction of engaging in organized criminal activity by conspiring to commit the object offense and in using party liability to support conviction under the same statute for the commission of the object offense?

: No McIntosh v. State, 52 S.W.3d 196, 201 (Tex. Crim. App. 2001).

12

TX Does more than one criminal offense need to be proven to establish the offense of engaging in organized criminal activity under TX Pen. Code 71.02?

No. The acts which prove the defendant intended to “establish, maintain, or participate in” a group of three or more, in which the members intended to work together in a continuing course of criminal activities, do not necessarily have to criminal offenses. One may engage in organized crime by committing one or more of the proscribed acts with the intent to establish a combination. Accordingly, the proscribed action may be the first actual crime committed by a member of the combination. Neguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999).

13

TX What does the State have to prove for the offense of Engaging in Organized Criminal Activity under Section 71.02?

The state must prove 1. The existence of a combination, and 2. That the defendant either committed one of the enumerated offenses under Section 71.02(a) in order to facilitate the combination, or that he conspired with at least one other to commit such an offense and he and at least one other performed an over act pursuant to the conspiracy, with the intent to facilitate the combination. Fee v. State, 871 S.W.2d 392, 395 (Tex. Crim. App. 1992).

14

TX What is the category/class of the offense violation of court ordered enjoining organized criminal activity?

Class A misdemeanor Tex. Pen. Code 71.021(c)

15

TX If a defendant engages in conduct constituting the offense of violation of court order enjoining organized criminal activity under Section 71.021 and an offense under another section of the penal code under which section may the defendant be prosecuted?

The defendant may be prosecuted for either Penal Code violation or both. Tex. Pen. Code 71.021(b).

16

TX A person commits the offense of Violation of Court Order Enjoying Organized Criminal Activity under Section 71.021 of the penal code if?

The defendant knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code. Tex. Pen. Code 71.021(a)

17

TX A person commits the offense of Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang if?

1. The person knowingly causes, enables, encourages, recruits, or solicits another person to become a member of a criminal street gang which, as a condition of initiation, admission, membership or continued membership requires the commission of any conduct which constitutes an offense punishable as a Class A misdemeanor or a felony.
2. The person with internt to coerce, induce, or solicit a child (person younger than 17) to actively participate in the activities of a criminal street gang, the person:
A. Threatens the child or a member of the child’s family with imminent bodily injury or
B. Causes bodily injury to the child or a member of the child’s family.
Tex. Pen. Code 71.022(a), (a-1)

18

TX What is the punishment for Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang under TX Pen. Code Section 71.022?

The offense of Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang is a third degree felony unless it is a second or subsequent offense under 71.022 in which case it is a second degree felony. TX Pen. Code 71.022(b), (c)

19

TX A person engages in the offense of Directing Activities of Criminal Street Gangs under Tex. Pen. Code Section 71.023 if they engage in what activities?

A person commits the offense if the person, as part of the identifiable leadership of a criminal street gang, knowingly finances, directs, or supervises the commission of, or a conspiracy to commit, one or more of the following offenses by members of a criminal street gang:
1. A felony offense that is listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure
2. A felony offense for which it is shown that a deadly weapon, as defined by Section 1.07, was used or exhibited during the commission of the offense or during immediate flight from the commission of the offense; or
3. an offense that is punishable under Section 481.112(e), 481.112(f), 481.1121(b)(4), 481.114(f), or 481.120(b)(6), Health and Safety Code.

20

TX What is the punishment range for the offense of Directing Activities of Criminal Street Gangs?

Directing Activities of Criminal Street Gangs is a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25.

21

TX What offenses can the enhancement for committing an offense in a Gang-Free Zone under Tex. Pen. Code Section 71.028 be applied?

Offenses listed in:
Section 71.02(a)(1) Murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle or unauthorized use of a motor vehicle;
Section 71.02(a)(4) Unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons or
Section 71.02(a)(7) Any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age
Other than burglary, theft, burglary of a motor vehicle, or unauthorized use of a motor vehicle.
Tex. Pen. Code 71.028(b)

22

TX What must the State prove at trial in order to receive the Gang-Free Zone enhancement under Tex. Pen. Code 71.028?

The State must prove that the actor committed the offense at a location that was:
1. in, on, or within 1,000 feet of any:
A. real property that is owned, rented, or leased by a school or school board;
B. premises owned, rented or leased by an institution of higher education;
C. premises of a public or private youth center; or
D. playground;
2. in, on, or within 300 feet of any:
A. Shopping mall,
B. movie theater;
C. premises of a public swimming pool; or
D. premises of a video arcade facility; or
3. on a school bus. Tex. Pen. Code 71.028(c)
Q: TX What level of proof is required for the State to prove the offense occurred in a gang-free zone?
A: Proof Beyond a Reasonable Doubt Tex. Pen. Code 71.028(c)

23

TX How does application of the Gang-Free Zone enhancement under Texas Pen. Code 71.028 affect punishment?

The punishment for an offense covered by the Gang-Free Zone enhancement is increased to the punishment prescribed for the next highest category of offense. Except the punishment cannot be increased if the offense is punishable under Section 71.02 as a felony of the first degree. Tex. Pen. Code 71.028(c),(d)

24

TX If a prosecution of an offense includes the enhancement under section 71.028 for commission of an offense in a Gang-Free Zone is a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of gang-free zones admissible?

Yes, it is admissible in evidence and is prima facie evidence of the location or boundaries of the those zones if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas. Tex. Pen. Code 71.029

25

TX What defenses are excluded in a prosecution for an offense under Section 71.02 Engaging in Organized or Criminal Activity?

1. One or more members of the combination are not criminally responsible for the object offense;
2. One or more members of the combination have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense, or re immune from prosecution;
3. A person has been charged with, acquitted, or convicted of any offense listed in Subsection(a) of Section 71.02; or
4. Once the initial combination of three or more persons is formed there is a change in the number or identity of persons in the combination as long as two or more persons remain in the combination and are involved in a continuing course of conduct constituting an offense under this Chapter.
Tex. Pen. Code. 71.03

26

TX Is there testimonial immunity for a party to an offense under Chapter 71 Organized Crime who is required to furnish evidence or testify about the offense?

Yes, no evidence or testimony required to be furnished under the provisions of this section nor any information directly or indirectly derived from such evidence or testimony may be used against the witness in any criminal case, except a prosecution for aggravated perjury or contempt. Tex. Fam. Code 71.04

27

TX Is renunciation a defense to the offense of Engaging in Organized Criminal Activity under Section 72.01?

Yes, It is an affirmative defense to prosecution under Section 72.01 that under circumstances manifesting a voluntary and complete renunciation of the actor’s criminal objective, the actor withdrew from the combination before commission of an offense listed in Section 71.02(a) and took further affirmative action that prevented the commission of the offense. Tex. Pen. Code 71.05

28

TX When is renunciation of the offense of Engaging in Organized Criminal Activity under Section 72.01 not voluntary?

Renunciation is not voluntary if it is motivated in whole or part:
1. By circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment f the objective; or
2. By a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.
Tex. Pen. Code 71.05(b)

29

TX Can renunciation lower the punishment grade if a defendant is found guilty of Engaging in Organized Criminal Activity?

Yes, Evidence that the defendant withdrew form the combination before commission of an offense listed in Section 71.02(a) and made substantial effort to prevent the commission of an offense listed in Section 71.02(a) shall be admissible as mitigation at a hearing on punishment and in the event a finding of renunciation under Section 71.05 occurs the punishment shall be one grade lower than that provided under Section 71.02. Tex. Pen. Code 71.05(c)

30

TX A person commits the offense of public intoxication if?

The person appears in a public place while intoxicated to the degree that the person may endanger the person or another. Tex. Pen. Code 49.02(a)

31

TX Is a place licensed or permitted under the Alcoholic Beverage Code a public place under the offense of public intoxication?

Yes Tex. Pen. Code 49.02(a-1)

32

TX What offense specific defense is available to the offense of public intoxication?

That the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician. Tex. Pen. Code 49.02(b).

33

TX Is Public Intoxication a lesser included to the offense of Driving While Intoxicated?

No. Tex. Pen. Code 49.02(d)

34

TX What is the punishment category for Public Intoxication?

Public Intoxication is a Class C misdemeanor. If the offense of Public Intoxication is committed by a person younger than 21 it is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies. Tex. Pen. Code 49.02(e)

35

TX Is a vehicle traveling on a road in a “public place” as defined for the offense of public intoxication?

Whether or not a vehicle is a public place as it travels down a road way is a question of fact for the trier of fact. Kirtley v. State, 585 S.W.2d 724, 725 (Tex. Crim. App. 1979).

36

TX: A person commits the offense of Possession of Alcoholic Beverage in Motor Vehicle if?

The person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Tex. Pen. Code 49.031(b)

37

TX Can a person with more than one open container in their motor vehicle be charged with multiple offenses?

No, possession by a person of one or more open containers in a single criminal episode is a single offense. Tex. Pen. Code 49.031(b)

38

TX Is a defendant guilty of possession of alcoholic beverage in motor vehicle if he is a passenger in a motor vehicle designed, maintained or used primarily for transportation of persons for compensation?

No. Vehicles used for transportation for compensation includes buses, taxicabs and limousines. Tex. Pen. Code 49.031(c)(1).

39

TX What is the punishment category for possession of alcoholic beverage in motor vehicle?

Class C misdemeanor Tex. Pen. Code 49.031(d)

40

TX A person commits the offense of Driving While Intoxicated if?

The person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code 49.04

41

TX What is the punishment category for Driving While Intoxicated?

Class B misdemeanor or Class A misdemeanor if AC 0.15 or higher, unless enhanced under 49.09 Tex. Pen. Code 49.04(b), (d)
Pen. Code. 49.09
Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(a)
Third degree felony if it is shown on the trial of the offense that the person has previously been convicted of:
1. one time of an offense of Intoxication Manslaughter (49.08) or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense of Intoxication Manslaughter; or
2. two time of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(b)

42

TX What is the minimum term of confinement for an offense of Driving While Intoxicated?

72 hours Tex. Pen. Code 49.04(b)

43

TX What is the minimum term of confinement for an offense of Driving While Intoxicated when an open container of alcohol is in the defendant’s immediate possession?

6 days Tex. Pen. Code 49.04(c)

44

TX Is defendant harmed when “synergistic effect instruction” is given to the jury when no evidence was presented the defendant ingested any intoxicating substances other than alcohol?

Yes Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011).

45

TX Does there need to be a temporal link between the defendant’s intoxication and his driving?

Yes Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

46

TX Can the temporal link between the defendant’s intoxication and his driving be shown by circumstantial evidence?

Yes Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010).

47

TX What evidence is sufficient to support a jury charge on the “per se” theory of intoxication?

Evidence is sufficient if it includes either 1. Expert testimony of retrograde extrapolation or 2. Other evidence of intoxication that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test. Kirsh v. State, 306 S.W.3d 738, 745-46 (Tex. Crim. App. 2010).

48

TX Is a BAC test result by itself sufficient to prove intoxication at the time of driving?

No. Kirsh v. State, 306 S.W.3d 738, 745-46 (Tex. Crim. App. 2010).

49

TX Is the substance that causes intoxication an element of the offense of driving while intoxicated?

No, it is an evidentiary matter. Gray v. State, 152 S.W.3d 797, 800 (Tex. App. 2004).

50

TX A person commits the offense of Driving While Intoxicated with Child Passenger if?

The person is intoxicated while operating a motor vehicle in a public place; and the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age. Tex. Pen. Code 49.045

51

TX What is the punishment category for the offense of Driving While Intoxicated with Child Passenger?

State Jail Felony 49.045(b)

52

TX A person commits the offense of flying while intoxicated if?

The person is intoxicated while operating an aircraft. Tex. Pen Code 49.05

53

TX What is the punishment category for the offense of Flying While Intoxicated?

Class B Misdemeanor with a minimum term of confinement of 72 hours unless enhanced by 49.09. Tex. Pen. Code 49.05(b)
Pen. Codfe. 49.09
Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(a)
Third degree felony if it is shown on the trial of the offense that the person has previously been convicted of:
1. one time of an offense of Intoxication Manslaughter (49.08) or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense of Intoxication Manslaughter; or
2. two time of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(b)

54

TX A person commits the offense of Boating While Intoxicated if?

The person is intoxicated while operating a watercraft. Tex. Pen. Code 49.06

55

TX What is the punishment category for the offense of Boating While Intoxicated?

Class B Misdemeanor with a minimum term of confinement of 72 hours unless enhanced by 49.09. Tex. Pen. Code 49.06(b)
Pen. Code. 49.09
Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(a)
Third degree felony if it is shown on the trial of the offense that the person has previously been convicted of:
1. one time of an offense of Intoxication Manslaughter (49.08) or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense of Intoxication Manslaughter; or
2. two time of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(b)

56

TX A person commits the offense of Assembling or Operating an Amusement Ride While Intoxicated if:

The person intoxicated while operating an amusement ride or while assembling a mobile amusement ride. Tex. Pen. Code 49.065

57

TX What is the punishment category for the offense of Assembling or Operating an Amusement Ride While Intoxicated?

Class B Misdemeanor with a minimum term of confinement of 72 hours unless enhanced by 49.09; if it is shown that at the time of the offense the defendant had an open container of alcohol in their immediate possession, the offense is a Class B Misdemeanor with a minimum term of confinement of six days. Tex. Pen. Code 49.065(b), (c)
Pen. Code. 49.09
Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on trial of the offense that the person has previously been convicted one time of an offense relating to the operating a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(a)
Third degree felony if it is shown on the trial of the offense that the person has previously been convicted of:
1. one time of an offense of Intoxication Manslaughter (49.08) or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense of Intoxication Manslaughter; or
2. two time of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated. Tex. Pen. Code 49.09(b)

58

TX A person commits the offense of Intoxication Assault if:

The person 1. while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
2. As the result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another. Tex. Pen. Code 49.07(a)

59

TX What is the punishment category for the offense of Intoxication Assault?

Third degree felony unless enhanced by 49.09. Tex. Pen. Code 49.07(c).
Tex. Pen. Code 49.09
Second Degree Felony if it is shown at trial that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty. Tex. Pen. Code 49.09(b-1).
Second Degree Felony if it is shown at trial that the person caused serious bodily injury to another in the nature of a traumatic brain injury that results in a persistent vegetative state. Tex. Pen. Code 49.09(b-4).

60

TX A person commits the offense of Intoxication Manslaughter if?

The person 1. Operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and 2. is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code 49.08(a).

61

TX What is the punishment category for the offense of Intoxication Manslaughter?

Second degree felony unless enhanced by 49.09. Tex. Pen. Code 49.08(b)
Tex. Pen. Code 49.09
First degree felony if it is shown at trial that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty. Tex. Pen. Code 49.09(b-2).

62

TX Is felony DWI a lesser included of Intoxication Manslaughter?

No. Lomax v. State, 233 S.W.3d 302, 311 (Tex. Crim. App. 2007).

63

TX After a defendant is acquitted of intoxication manslaughter in the first trial may the state in another criminal proceeding use an alternate theory of intoxication against the defendant for death of second passenger?

No, collateral estoppel bars the State from relitigating the ultimate issue of intoxication regardless of whether the State alleged a different type of intoxicant. Ex parte Taylor, 101 S.W.3d 434, 436 (Tex. Crim. App. 2002).

64

TX Is proof a mental state required for a conviction under Chapter 49 Intoxication and Alcoholic Beverage Offense?

Notwithstanding Section 6.02(b) (If the definition of an offense does not prescribe a culpable, mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.) proof of a culpable mental state is not required for conviction of an offense under this chapter. Tex. Pen. Code 49.11(a). Exception Possession of Alcoholic Beverage in Motor Vehicle requires mental state of knowingly. Tex. Pen. Code 49.11(b).

65

TX Does the offense of Intoxication Assault and Intoxication Manslaughter apply to the injury or death of an unborn child if the conduct charged is committed by the mother of the unborn child?

No Tex. Pen. Code 49.12

66

TX For purposes of enhancement under Tex. Pen. Code 49.09 (Enhanced Offenses and Penalties Intoxication and Alcoholic Beverage related offenses) does a probated sentence count as a final conviction?

Yes, a conviction is a final conviction whether the sentence for the conviction is imposed or probated. Tex. Pen. Code 49.09(d).

67

TX What additional penalty applies to defendants convicted of a second or subsequent offense relating to operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed?

The Court shall enter an order requiring the defendant to have a device installed on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator and prohibit defendant from operating any vehicle without a device for the one year period following the ending date of the period of license suspension. Tex. Pen. Code 49.09(h)

68

TX May federal conviction assimilating a state offense for driving while intoxicated be used for enhancement purposes?

Yes. Bell v. State, 201 S.W.3d 708, 711 (Tex. Crim. App. 2006)

69

What do you need to argue for affirmative links with regard to possession?

1. Number of links;
2. Logical Force of links

70

When does a "prior" become final for enhancement purposes?

When mandate issues from appeal.
Beal CCA 2002

71

Can a prior be used as an element of an offense AND used to enhance the same offense?

Interpreting PC 12.46 - Wisdom, CCA 1986

NO.

72

How are Texas offenses enhanced based on bias or prejudice?

Other than 1st Deg. and Class A, next higher offense.
Class A minimum confinement becomes 180 days.

NOTE: Bias or prejudice offenses - DA can request AG help

73

What if a controlled substance is used in the commission of an offense?

If Title 5 (Crime Against Person), Robbery, or Theft - administered to victim:
1. Court must make finding;
2. Punishment is enhanced to next highest category (Class A min. 180 days jail) and 1st Deg. stays same

74

What increases State Jail to 3rd Deg?

1. Deadly weapon;
2. Prior 3g;
3. Prior Deadly Weapon finding
PC 12.35

75

Can the court orde "hybrid" sentence for some felonies?

Yes. SJF - may send to State Jail and then put on probation.

76

What is required if the judge assesses punishment for a State Jail Felony?

He MUST order a PSI;
Determine whether its in the "best interest of justice" to suspend sentence
Judge SHALL impose conditions consistent with recommendations in PSI.
TCCP 42.12 Sec. 15

77

Where is the Texas separation of powers?

Texas Const. Art. 2
"The Powers of Government"

78

Can a judge place D on probation for a SJF if the jury does not recommend probation?

UPDATE:
No. Judge has to send D to State Jail.

79

How is child defined for Continuous?

By referencing Sex. Assault definition - Younger than 17

80

What is the period of duration for Continuous?

30 days or more (so 29 or less no good)

81

Does Continuous have to be against the same victim?

No.

82

How old must D be for Continuous?

17 or older - so not a juv. offense

83

How young must the vic be?

Younger than 14 (14 OK)

84

What offenses are considered for Continuous?

1. Agg. Kidnapping for sexual abuse or violation;
2. Indecency Sexual Contact (Not breasts)
3. Sex. Assault;
4. Agg. Sex. Assault;
5. Burg. with intent to commit 1-4
6. Sexual Performance of child;
7. Trafficking of child for sex;
8. Compelling prostitution.

85

What does the jury have to agree on with regard to sexual abuse on Continuous case?

NOT "specific acts"
NOT "exact dates"
Just 30 days or more AND two or more acts of sexual abuse.

86

Can D be convicted of 1-8 offenses independently AND use it for Continuous - if same victim?

NO, unless:
1. Charged in alternative;
2. Occurred outside period offense is alleged;
3. Jury finds offense is a "lesser included" of Continuous

87

Can a D be charged with multiple counts of Continuous?

Not unless it's a different victim.

88

What is the age limits for Continuous?

D must be 17 or older
V must be younger than 14
Aff. Def. that D is NOT more than 5 years older than V - IF one victim - or not 5 years older than YOUNGEST victim - didn't use duress, force, or threat at commision AND D not a registered sex offender AND didn't have a reportable conviction for 1-8

89

What is punishment range for Continuous?

25 - 99 or life

90

Is there an affirmative defense to Continuous?

Yes.....
D not more than 5 years older than SINGLE victim OR youngest victim;
D didn't use duress, force, or threat;
D not supposed to register as sex offender;
D doesn't have conviction for 1-8

91

What is the code provision for Continuous?

PC 21.02

92

What is the argument against Continuous lack of unanimity?

This is the kind of "moral equivalence" motivation that Scalia warns about in Schad. Indeed, it violates the "fairness and rationality" that Due Process demands. It equates with his example of charging as a single crime: jurors can find D guilty if they believe either: 1 he assault X on Tuesday, or Y on Wednesday.

TCCP 36.29

Pet has been denied in Martin (from Austin) and cert. denied by S.Ct.

93

What are the 3 types of gravamen for crimes?

1. Nature of conduct;
2. Result of Conduct;
3. Circumstances of conduct.

Loving CCA 2013
Citing PC 6.03

94

What is the test for Double Jeopardy concerning lesser included?

Sutherland's Blockburger Test 1932
Whether each offense requires proof of an element the other does not.

95

Where is lesser included offense located?

TCCP 37.09
1. Same or less facts;
2. Differs only in injury or risk of injury;
3. Differs in mental state;
4. Consists of "attempt" or other included

96

Do you look only to the statute for lesser included analysis?

No.
Hall - Cognate-pleading Approach - look at indictment
Also, "descriptive averments" may create lesser