Texas Penal Code 19.02 – Murder

WHAT IS MURDER IN TEXAS?

Texas law prohibits killing someone without legal justification. There are three ways in which a person may be charged with murder in Texas:

1. intentionally killing another;
2. intending to cause another serious bodily injury, and causing death by committing an act clearly dangerous to human life; or
3. causing death by committing an act clearly dangerous to human life while committing or attempting to commit a felony.

In addition to intentionally killing someone, murder includes two other scenarios in which the victim’s death may not have been the ultimate intention. For example, if a person intends to harm another, and ultimately causes their death, that person may be prosecuted for murder. 

• What is felony murder in Texas? Felony murder is an unintentional killing while in the course of committing a felony. Any felony may serve as the predicate felony for felony murder, except manslaughter or any lesser-included offenses of manslaughter.

• What is an example of felony murder? A person who robs a convenience store at gunpoint commits aggravated robbery, but if the person runs over a bystander with the getaway car, he may be charged with felony murder.In Fraser v. State, a child died at a woman’s daycare after ingesting Benadryl. Other children at the daycare also had Benadryl in their systems. The woman was convicted of felony murder in the course of committing or attempting to commit the felony offense of injury to a child. The Court of Criminal Appeals upheld the conviction, explaining the State proved the defendant was guilty of injury to a child—of many children to whom she had given Benadryl—which led to the child’s ultimate death.

WHAT IS THE MURDER LAW IN TEXAS?

Tex. Penal Code § 19.02. MURDER. 

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

(c) Except as provided by Subsection (d), an offense under this section is a felony of the first degree.

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

Tex. Penal Code § 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other 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.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Penal Code § 9.22. NECESSITY. 

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Tex. Penal Code § 9.31. SELF-DEFENSE.

(a) Except as provided in Subsection (b), a person is justified in using force against another 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.

The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(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 unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Tex. Penal Code § 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Tex. Penal Code § 9.33. DEFENSE OF THIRD PERSON.

A person is justified in using force or deadly force against another to protect a third person if:

(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Tex. Penal Code § 9.41. PROTECTION OF ONE’S OWN PROPERTY.

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Tex. Penal Code § 9.42. DEADLY FORCE TO PROTECT PROPERTY.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

WHAT IS THE PENALTY CLASS FOR MURDER IN TEXAS?

Murder is a first degree felony in Texas, which carries a possible prison sentence between five to 99 years or life. A person convicted of murder may get punishment reduced to the second-degree felony range of two to 20 years if a jury believes the person acted out of “sudden passion.” 

• What is sudden passion? Texas Penal Code 19.02(a)(2) defines sudden passion as “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.”
  

• Can you get away with a crime of passion in Texas? If person commits murder under the immediate influence of sudden passion arising from adequate cause, induced by some provocation by the victim or another acting with the victim, the person may get a reduced punishment for the murder conviction.The accused must show at the punishment phase that he committed the murder before regaining his capacity for cool reflection, and that there was a causal connection between the provocation, the “passion,” and the homicide. A defendant’s testimony may raise the issue, and sudden passion and self-defense are not mutually exclusive.In Beltran v. State, three men—Beltran, McKnight, and Ramos—were in McKnight’s apartment doing drugs. Beltran passed out on the couch, and awoke to McKnight licking his anus. Ramos hit McKnight, then Beltran grabbed him while Ramos stabbed him to death. The two men took McKnight’s belongings and stole his car, and were charged with capital murder. Beltran argued self-defense, but was convicted of murder under the law of parties. His testimony that he panicked at waking up to McKnight’s behavior supported an instruction for sudden passion at the punishment phase.

WHAT IS THE PUNISHMENT RANGE FOR MURDER IN TEXAS?

The punishment range for murder, a first degree felony, is five to 99 years or life in prison, and a maximum $10,000 fine. Murder may be punished as a second degree felony, with a possible prison sentence between two and 20 years, if a jury believes the murder was committed in an act of sudden passion.

A person acts out of sudden passion if he killed the victim while in an excited and agitated state that arose out of direct provocation.

WHAT ARE THE PENALTIES FOR MURDER IN TEXAS?

A person charged with murder is not eligible for probation or deferred adjudication. First degree murder carries a punishment range between five to 99 years or life in prison. If a jury finds the person acted in sudden passion, the punishment range is reduced to two to 20 years. 

A person will be eligible for parole after serving either half their prison sentence, or 30 years, whichever is less. However, under no circumstances may a person serve less than two years in prison for a murder conviction.

WHAT ARE THE DEFENSES TO MURDER IN TEXAS?

The justification defenses are most often raised in murder prosecutions.

• What if a person kills another in self-defense? A person is justified in using deadly force against another when he reasonably believes deadly force is immediately necessary to protect against the other’s use or attempted use of unlawful deadly force.The person need not prove the victim was actually using deadly force—a person has the right to defend himself from apparent danger as he reasonably apprehends it.The victim does not need to be armed for their attack on the defendant to be considered “deadly force.” This means a person, in some circumstances, may defend himself with deadly force against an unarmed attacker. This is, however, a highly fact-specific inquiry.The Texas Court of Criminal Appeals has held that an assault by multiple people may justify use of deadly force. See, e.g., Rodriguez v. State, 629 S.W.3d 229 (Tex. Crim. App. 2021); Jordan v. State, 593 S.W.3d 340 (Tex. Crim. App. 2020).

• What if the accused started the fight prior to killing the other person? If the accused “provoked the difficulty,” he or she forfeits any claim of self-defense. Texas courts have interpreted this as more than merely starting the fight. Rather, self-defense is forfeited when an accused provoked the attack in a manner reasonably calculated to give the defendant a pretext for inflicting harm.The State must show: (1) the defendant provoked the attack through action or words; (2) the action or words were reasonably calculated to provoke the attack; and (3) the provocation was intended to give the defendant a pretext for inflicting harm. See Elizondo v. State, 487 S.W.3d 185 (Tex. Crim. App. 2016).

• What is the necessity defense for murder? Conduct ordinarily considered criminal is justified under the necessity defense if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.Necessity requires confession and avoidance, meaning the accused must admit to the allegation, but argue it was immediately necessary to avoid harm.The necessity defense is often subsumed by self-defense and defense of a third person in murder trials. Necessity is more commonly asserted as a defense to prosecutions for assault, aggravated assault, and other offenses such as driving while intoxicated.However, even if a person is justified in using force against another, if he recklessly injures or kills an innocent third person while doing so, the necessity defense or other justification does not apply to the reckless conduct against the innocent victim.

• What if the killing was in defense of another person? Using deadly force to protect someone is legally justified if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

• Texas law of parties: What if the person on trial did not kill the victim? A person may be criminally responsible for another’s conduct under certain circumstances. The Texas law of parties holds a person criminally responsible for the conduct of another if the person:

• • intended the commission of the ultimate crime, and solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense;
  • intended the commission of the ultimate crime, and caused or aided an innocent or nonresponsible person to commit the crime; or
  • in an attempt to carry out a conspiracy to commit a felony, one of the co-conspirators commits another felony in furtherance of the unlawful purpose which should have been anticipated by all conspirators.

In George v. State, a pimp dropped off two prostitutes at the victim’s hotel room, planning to rob him. After the prostitutes spent some time with the victim, the pimp and another man entered the room.

There was conflicting testimony as to whether the pimp just stood there, or whether he participated in severely beating the victim. The pimp was tried for capital murder in the course of robbery, and the jury was permitted to find him guilty as either the principal actor, a party, or under a conspiracy theory of liability. He was convicted, and it was affirmed.

• What is transferred intent in Texas? According to Texas Penal Code Section 6.04, transferred intent means a person is criminally responsible for causing a result if the only difference between what actually occurred and what the person desire, contemplated, or risked was that either: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.In Granger v. State, the defendant was on trial for sexually assaulting his daughter. The morning after his daughter and ex-wife testified against him, he waited for them to arrive at the courthouse, and opened fire when he saw them cross the street. He wounded them, and killed a bystander. He was convicted of capital murder, under the theory of transferred intent, because his specific intent was to kill his daughter and ex-wife in retaliation for their testimony against him. The CCA upheld his conviction under 19.03(a)(2), applying transferred intent.

• What is the mistake-of-fact defense in Texas? If a person mistakenly formed a reasonable belief about a fact that negated the kind of culpability required to commit the alleged offense, he or she may raise the mistake-of-fact defense. See Tex. Penal Code 8.02.In Curry v. State, a driver hit a cyclist and kept going. The cyclist died, and the driver was convicted of failure to stop and render aid. He claimed he did not know he hit anything, but the trial court refused a mistake-of-fact instruction.Because drivers involved in accidents must stop to determine whether anyone else was involved, or hurt, a driver’s mistaken belief that he had not hit anything would negate the required mental culpability. The jury should be permitted to decide whether it believed the defense.

• Is a person legally permitted to use deadly force to defend his or her property in Texas? Yes, under certain circumstances. Texas law permits using force to defend one’s land or personal property when and to the degree the person reasonably believes force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property. Deadly force to defend property is justified to prevent:

• • the other’s imminent commission of or immediate flight from committing arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; and 
  • the person reasonably believes:
    • the land or property cannot be protected or recovered by any other means, or 
    • the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

In McFadden v. State, the defendant was convicted of murdering her ex-boyfriend as she was moving her things out of his home. The defendant’s friend testified the victim went to the defendant’s car, started pouring gasoline on her boxes of stuff, and threatened to light them on fire. He went inside to assault the defendant, who got away and went outside.

He followed, and the defendant shot him. The trial court denied her requested self-defense and defense-of-property instructions. The appellate court reversed; the jury should’ve been able to consider those defenses. 

• Can a person consent to being killed in Texas? Legally, no. Consent is not a defense to murder in Texas, meaning one cannot legally give another permission to kill him without exposing that person to a murder prosecution. In such situations, a person who kills another with permission, at the very least, may be charged with aiding suicide.But Texas law flatly prohibits taking another’s life without justification, regardless of whether the deceased consented.

• What is the insanity defense in Texas? Texas Penal Code Section 8.01 states a person charged with a crime may assert the affirmative defense of insanity, and attempt to show that, at the time of the offense, the person did not know the conduct was wrong due to a severe mental disease or defect.Expert testimony by a licensed medical professional is generally the best way to prove the accused was legally insane at the time of the offense.

WHAT IS THE STATUTE OF LIMITATIONS FOR MURDER IN TEXAS?

There is no limitation period for murder.  A person may be prosecuted at any time for the offense.

MURDER IN TEXAS

Murder is killing another person without justification. There are three ways a person may commit and be charged with murder in Texas, along with a myriad of defenses.

TEXAS MURDER COURT CASES

The case law regarding murder in Texas further illustrates the various ways in which a person may be charged with the offense, and defend against it.

• In Rodriguez v. State, the defendant and victim were part of a brawl in the parking lot of Cowboys Stadium. The defendant broke away at one point, got his gun “to scare away attackers.” There was conflicting evidence as to whether the defendant intentionally pulled the trigger, but undisputed that he pointed his gun at the victim. The defendant asserted self-defense, defense of a third person, and necessity.
  
  The Texas Court of Criminal Appeals held the defendant satisfied the confession-and-avoidance requirement to raise his defenses, despite arguing he did not intend to fire his gun. Conviction reversed, and case remanded.
• In Walter v. State, an Abilene police officer met the co-defendants, a couple having financial trouble, on Craigslist after he placed an ad for an unconventional sexual encounter. The couple went to the victim’s apartment, and later that evening, he was found dead, naked, with cords wrapped around his neck. Some of the victim’s valuables were missing, including his duty weapon. The couple was charged with murder and robbery.
  
  The defendants argued the victim consented to being choked, then accidentally died. There is no consent defense to murder, nor any enumerated “accident” defense. Convictions affirmed.