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Flashcards in Texas Penal Code Deck (58)
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1

When is the existence of an affirmative defense submitted to the jury?

Only when there is evidence admitted supporting the defense.

2

What is the defendant's burden of proof as to an affirmative defense?

Preponderance of the evidence.

3

What is the definition of "criminal episode?"

The commission of two or more offenses committed pursuant to same transaction or common scheme or plan or the offenses are the repeated commission of the same or similar offenses.

4

When is a party criminally responsible as a party to an offense?

When the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.

5

When is a person criminally responsible for the conduct of another?

1. acting with required culpability, he causes or aids an innocent or non responsible person to engage in conduct;

2. acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense; or

3. having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

6

Discuss "insanity."

It is an affirmative defense that at the time of the conduct charged, the actor did not know his conduct was wrong because of severe mental disease or defect.

7

Discuss "mistake of fact."

It is a defense to prosecution the actor through mistake formed a reasonable belief about a fact if his mistake negated the culpability required for committing the offense.

8

Discuss "mistake of law."

It is not a defense to prosecution to be ignorant of any law after the law has taken effect.

9

Can "mistake of law" be a defense?

Yes. It is an affirmative defense if the actor reasonable believed the conduct charged was not a crime and he acted in reasonable reliance on an official statement of the law contained in a written order by an administrative agency or a written interpretation of the law contained in an opinion of a court of record.

10

Is voluntary intoxication a defense to a crime?

No.

11

When may voluntary intoxication by introduced by the actor?

Evidence of temporary insanity caused by voluntary intoxication may be introduced in mitigation of the penalty.

12

Discuss "duress" as a defense to prosecution.

It is an affirmative defense. In a felony, defendant must show he was compelled to act by threat of imminent death or serious bodily injury to himself or another. In a misdemeanor, defendant must show he was compelled to act by force or threat of force. Defendant MUST admit the offense to use duress as a defense.

13

Discuss "necessity" as a justification.

Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.

14

When is use of force against another not justified?

1. In response to verbal provocation alone;

2. to resist an arrest or search by a peace officer even if the arrest or search is unlawful; (EXCEPTION - greater force than necessary)

3. if the actor consented to the exact force used or attempted by the other;

4. if the actor provoked the other's use or attempted use of force;

5. if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other persons while the actor was carrying a weapon in violation of 46.02 or 46.05.

15

When is a person justified in using self-defense?

When and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.

16

When is use of self-defense presumed reasonable?

1. person unlawfully and with force entered or was attempting to enter the actor's occupied habitation, vehicle, or place of business or employment;

2. person unlawfully and with force removed, or was attempting to remove the actor from his habitation, vehicle, or place of business or employment;

3. person was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

4. defendant did not provoke the person; and

5. defendant not engaged in criminal activity other than Class C at time force used.

17

When is use of deadly force justified?

When the person is justified in using force under 9.31, he reasonably believes deadly force is immediately necessary to protect himself against use or attempted use of deadly force or to prevent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Same presumptions for reasonableness as 9.31.

18

When is a person justified in using force or deadly force to protect a third person?

When justified under 9.31 or 9.32 in using force or deadly force to protect himself and he reasonably believes it is necessary to protect the third person.

19

When is deadly force to protect property justified?

When the actor reasonably believes force is immediately necessary to prevent or terminate trespass on the property or prevent unlawful interference with the property AND

he reasonably believes deadly force is immediately necessary to prevent imminent commission of arson, burglary, robbery, aggravated robbery, theft at night, or criminal mischief at night OR

to prevent person who is fleeing from escaping with property AND he reasonably believes the land or property cannot be protected by any other means.

20

When does a person commit "criminal attempt?"

If with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

21

What is the punishment for criminal attempt?

One category lower than the offense attempted

22

When does a person commit "criminal conspiracy?"

If with intent to commit a felony:

- he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

- he or one or more of them performs an overt act in pursuance of the agreement

23

What is the punishment for criminal conspiracy?

One category lower than the most serious felony that is the object of the conspiracy

24

What is not a defense to prosecution for criminal conspiracy?

- one or more of the conspirators is not criminally responsible;

- one or more of the conspirators has been acquitted as long as two or more conspirators have not been acquitted

- one or more of the conspirator have not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;

- the actor belongs to a class of persons that is legally incapable of committing the object offense in an individual capacity; or

- the object offense was actually committed

25

When does a person commit "criminal solicitation?"

If with intent to commit a capital felony or F1, he requests, commands, or attempts to induce another to engage in specific conduct that would constitute the felony or make the other a party to its commission

26

Are there any restrictions for conviction for criminal solicitation?

A person may not be convicted on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor's intent that the other person act on it

27

What is the definition of "adequate cause?"

Cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection

28

What is the definition of "sudden passion?"

Passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

29

What are the three ways a person commits murder?

- intentionally or knowing causing the death of another

- intending to cause SBI and commits an act clearly dangerous to human life that causes the death of another

- while committing or attempting to commit a felony, other than manslaughter, commits or attempts to commit an act clearly dangerous to human life that causes the death of another

30

Discuss how "sudden passion" can be an issue in a murder trial.

At punishment stage of trial, the defendant may raise issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. It is an affirmative defense. If proven, then F2 punishment.