Capital Punishment in Texas - Capital Offenses

Capital Offenses

With one exception, the only crime for which the death penalty can be assessed is "capital murder".

Unlike the Model Penal Code (which does not specifically define the crime of capital murder), the Texas Penal Code specifically defines capital murder (and, thus, the possibility of the death penalty as a punishment) as murder which involves one or more of the elements listed below:

• Murder of an on-duty public safety officer or firefighter (the defendant must have known that the victim was such)
• Intentional murder in the course of committing or attempting to commit a felony offense (such as burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat)
• Murder for remuneration or for promise of remuneration (both the person who does the actual murder and the person who hired them can be charged with capital murder)
• Murder while escaping or attempting to escape a penal institution
• Murder while incarcerated with one of the following three qualifiers:
  • While incarcerated for capital murder, the victim is an employee of the institution or the murder must be done "with the intent to establish, maintain, or participate in a combination or in the profits of a combination",
  • While incarcerated for either capital murder or murder, or
  • While serving either a life sentence or a 99-year sentence under specified Penal Code sections not involving capital murder or murder.
• Multiple murders (defined as two or more murders during the same "criminal act", which can involve a series of events not taking place at the same time)
• Murder of an individual under ten years of age
• Murder of a person in retaliation for, or on account of, the service or status of the other person as a judge or justice of any court

The Texas Penal Code also allows for the death penalty to be assessed for "aggravated sexual assault of child committed by someone previously convicted of aggravated sexual assault of child". The statute remains part of the Penal Code; however, the Supreme Court of the United States's decision in Kennedy v. Louisiana which outlawed the death penalty for any crime not involving murder nullifies its effect.

The Texas Penal Code also provides for the crime of "Capital Sabotage", which while being essentially the same as Capital Murder (the statute provides for the death penalty for "sabotage directly resulting in death") is still listed in its own section of the Texas Penal Code.

The Texas Penal Code also allows a person can be convicted of any felony, including capital murder, "as a party" to the offense under its "law of parties", a variant of the common law felony murder rule. "As a party" means that the person did not personally commit the elements of the crime, but is otherwise responsible for the conduct of the actual perpetrator as defined by law; which includes:

• soliciting for the act,
• encouraging its commission,
• aiding the commission of the offense,
• participating in a conspiracy to commit any felony where one of the conspirators commits the crime of capital murder

The felony involved does not have to be capital murder; if a person is proven to be a party to a felony offense and a murder is committed, the person can be charged with and convicted of capital murder, and thus eligible for the death penalty.

As in any other state, people who are under 18 at the time of commission of the capital crime or mentally retarded are precluded from being executed by the Constitution of the United States.