Comment

Conspiracy is prohibited by and defined in Tex. Penal Code § 15.02. This instruction is based on an indictment for conspiracy to commit a murder as defined by Tex. Penal Code § 19.02(b)(1). The court will need to modify this instruction depending on the accusation.

A defendant cannot be convicted of conspiracy if the only coconspirator is a government agent. Williams v. State, 646 S.W.2d 221 (Tex. Crim. App. 1983) (evidence insufficient to prove conspiracy when only coconspirator worked for police and had no real intention that aggravated kidnapping be committed). If the evidence raises this issue, modify the instruction as needed.

The Committee’s sample instruction lists only one overt act. If more than one overt act is submitted, modify the instruction as needed.

Texas Penal Code section 15.02(c) sets out a number of circumstances that may have provided a defense at common law but under the modern Penal Code do not constitute defenses. One of these nondefenses—section 15.02(c)(2)—provides that “[i]t is no defense to prosecution for criminal conspiracy that . . . one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted.” The negative implication of this language is that it is a defense to prosecution that all coconspirators other than the defendant have been acquitted. Nevertheless, Penal Code section 2.03(a) states that defenses in the Penal Code will only be expressly labeled by the phrase: “It is a defense to prosecution…” Also, the court of criminal appeals held in Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998), that “a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.” Consequently, the Committee does not recommend a defensive instruction based on section 15.02(c)(2).

A person cannot be guilty of conspiracy unless there is a real agreement between two or more parties who both have criminal intent.

If the issue of venue is raised at trial, refer to Texas Code of Criminal Procedure article 13.13.

Definitions of “Conduct” and “Act.” Practitioners should tailor the definition of “conduct” to the case. See Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017) (only portions of statutory definitions that are supported by the evidence should be submitted in jury instructions). Including the complete Penal Code definition of “conduct”—i.e., “an act or omission and its accompanying mental state”—introduces the idea into the jury instruction that the target felony could be an omission. This may or may not be the case. Under Penal Code section 6.01(c), failing to perform an act is not a crime unless the law expressly makes it so or provides that the defendant has a duty to perform the act. In typical conspiracy cases, the object offense will be a crime of action, not omission. In these cases, it is appropriate to tailor the definition not to include an omission.

The definition of “conduct” includes the term “act,” which, in turn, is defined as “a bodily movement, whether voluntary or involuntary, and includes speech.” Tex. Penal Code § 1.07(a)(1). Jury instructions that define “conduct” also typically include a separate definition of “act.” Conspiracy instructions have the additional complication that the offense requires an “overt act,” and it is not clear that the definition of “act” applies to this phrase, although courts have assumed it does for other offenses. See State v. Diaz–Bonilla, 495 S.W.3d 45, 51 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (construing “overt act” for engaging in organized criminal activity by reference to section 1.07(a)(1)’s definition of act); Marshall v. State, No. 14-95-01183-CR, 1996 WL 491654, at *2 (Tex. App.—Houston [14th Dist.] Aug. 29, 1996, pet. ref'd) (not designated for publication) (referencing section 1.07(a)(1)’s definition for overt act in impersonating a public servant); see also State v. K.E.W., 315 S.W.3d 16, 22 (Tex. 2010) (construing phrase in mental health commitment statute, explaining “We do not see any indication the Legislature intended to limit the term ‘overt act’ to physical conduct as opposed to any other action objectively perceptible, including verbal statements.”). “Overt act”—as a term of art with a long history—may mean something different than what results from combining the common understanding of “overt” and the statutory definition of “act.” It might, for instance, require a deed and not “mere” speech. See Cramer v. United States, 325 U.S. 1, 61 (1945) (Douglas, J., dissenting) (“[T]he requirement of an overt act [to constitute proof of treason under U.S. Const. art. III, § 3] is designed to preclude punishment for treasonable plans or schemes or hopes which have never moved out of the realm of thought or speech.”). Because of the inchoate nature of conspiracy, the “overt act” requirement functions as a safeguard against convictions based on a plan “still resting solely in the minds of the conspirators” and where it is not yet “manifest that the conspiracy is at work.” Yates v. United States, 354 U.S. 298, 334 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978). While not setting out a comprehensive definition, the instructions tell jurors that “an overt act need not be in itself criminal, but it must be taken in pursuance of the agreement and it must take the conspiracy beyond a mere meeting of the minds.” The statute itself requires that the overt act be “in pursuance of the agreement.” To further avoid suggesting that “bodily movement . . . includ[ing] speech” sets the boundaries of what “act” means within the phrase “overt act,” the instructions do not include a separate definition of “act” and, instead, fully incorporate the definition of “act” within the meaning of “conduct.” In most instances, the evidence will not raise an issue of voluntariness or mere speech, and thus the definition of “conduct” can be limited to “a bodily movement and its accompanying mental state.”