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Flashcards in Texas Penal Code Deck (96)
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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)