Comment

Criminal solicitation under Tex. Penal Code § 15.03(a) is limited to solicitations to commit either a capital felony or a first-degree felony. The felony used as the example in the following criminal solicitation instructions is capital murder under Tex. Penal Code § 19.03(a)(3). Guidance for drafting instructions on murder may be found earlier in this chapter.

The offense of criminal solicitation requires proof that the defendant acted “with intent that a capital felony or felony of the first degree be committed.” Two specific aspects of section 15.03 deserve comment. First, the request, command, or attempt to induce another must be “to engage in specific conduct, that under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.”

Several cases addressing claims of fundamental deficiency in indictments have commented that this language was intended only to preclude impossibility as a defense and thus does not constitute an element of criminal solicitation. Hobbs v. State, 548 S.W.2d 884, 887 (Tex. Crim. App. 1977) (no allegation of this purported element); Robinson v. State, 764 S.W.2d 367, 370–71 (Tex. App.—Dallas 1989, no pet.) (inadequate allegation of this purported element).

These cases do not, however, deal with jury submission. The Committee concluded that the legislature most likely intended the language at issue as a substantive part of the definition of criminal solicitation. Thus the instructions include it.

Second, Tex. Penal Code § 15.03(b) provides a special corroboration requirement applicable when the state relies on a witness who was the person that was actually solicited:

Despite the statutory reference to circumstances “strongly corroborative,” many courts have concluded that the standard applicable is no more stringent than that applicable to accomplice witness situations under Texas Code of Criminal Procedure article 38.14. One court explained:

Thomas v. State, 31 S.W.3d 422, 424 (Tex. App.—Fort Worth 2000, pet. ref’d).

Corroboration Requirement. The Committee considered two related aspects of jury submission of the corroboration requirement. First, should the requirement not only be included in the abstract portions of the instructions but also incorporated into the application of law to facts portion? See Lankford v. State, 255 S.W.3d 275, 280 (Tex. App.—Waco 2008, pet. ref’d) (noting that “[s]everal cases have indicated that the better practice is for the trial court to submit an instruction on corroboration in the application paragraph,” assuming—without deciding—trial court erred in failing to do so, but finding any error harmless); Sterling v. State, No. 05-08-00347-CR, 2012 WL 1004732, at *5–6 (Tex. App.—Dallas 2012, pet. ref’d) (not designated for publication) (“[E]ven if it was error not to incorporate the corroboration instruction into the two application paragraphs, there was no egregious harm to appellant given the substantial amount of corroborating evidence in this case.”).

Second, should the corroboration instructions themselves include an application portion? See Barton v. State, No. 03-07-00423-CR, 2008 WL 1827492, at *6 (Tex. App.—Austin Apr. 23, 2008, pet. ref’d) (not designated for publication) (“Texas courts have expressed approval of corroboration instructions that contain . . . an application paragraph.”). Apparently the only way an application portion would be more specific is that it would identify by name the witness whose testimony requires corroboration. See Bell v. State, 768 S.W.2d 790, 799–800 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d) (example of two-part instruction).

The Committee concluded that the corroboration requirement is not an element of the offense of solicitation, so placement in the application of law to facts unit of the instructions would be unnecessary and inappropriate.

Nearly the same result is accomplished by putting a purely abstract version of the requirement in the relevant statutes unit of the instructions and then adding a unit—sufficiency of corroboration—that presents it again and applies it by specifying the witness whose testimony must be corroborated.

Renunciation and Quasi-Renunciation. The affirmative defense of renunciation and punishment mitigation by quasi-renunciation are discussed in depth at CPJC 15.6 and CPJC 15.7 in this chapter.

Defining Terms. Renunciation and quasi-renunciation for criminal solicitation occur when the actor “countermand[s]” his solicitation. Tex. Penal Code § 15.04(b), (d). The Committee was concerned that many jurors would not understand the precise meaning of “countermand.” As applied to the renunciation defense, the common definition requires not just abandoning the effort at soliciting the crime but issuing a contrary instruction that revokes the prior solicitation. See Gordon v. State, No. 05-14-00824-CR, 2015 WL 4977017, at *3 (Tex. App.—Dallas Aug. 20, 2015, pet. ref’d) (not designated for publication) (citing Webster’s Dictionary and defining “countermand” in a sufficiency review as “‘to revoke (a former command)’ or ‘cancel or rescind (an order) by giving a contrary order’; or ‘to recall or order back by a superseding contrary order’” and holding that reporting crime to police did not constitute countermanding a solicitation); see also Cook v. State, No. 04-17-00149-CR, 2018 WL 3747737 (Tex. App.—San Antonio Aug. 8, 2018, no pet.) (citing same definition). Several members of the Committee were concerned that jurors would not appreciate the requirement of making a superseding contrary instruction without some guidance in the jury instructions. Nevertheless, the court of criminal appeals has held that it is improper to provide a nonstatutory definition of a term that has not acquired a technical, legal meaning. See Green v. Texas, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015) (error to define “penetrate” and “female sexual organ” since these are common terms that jurors are “free to assign any meaning that is acceptable in common parlance”). Trial courts do not have the liberty to refer in their jury instructions, as appellate courts frequently do, to dictionary definitions of statutorily undefined common terms. When appellate courts do so, it is often in a sufficiency review, which asks whether there is evidence from which any rational jury can convict beyond a reasonable doubt. When appellate courts use these definitions, it is not because the jury is required to do so, but because a rational jury would be permitted to do so. Applying a limited definition in the jury instructions that a jury is not required to follow could constitute an improper comment on the weight of the evidence. See Green, 476 S.W.3d at 445; Kirsch v. State, 357 S.W.3d 645, 651–52 (Tex. Crim. App. 2012). Practitioners would, of course, be free to argue appropriate common definitions during jury argument, or, if the parties agreed, the instructions could provide a definition for “countermand his solicitation” such as “to revoke his solicitation by giving a contrary instruction.” Without such agreement, the Committee concluded that the instructions should not provide a nonstatutory definition of “countermand.”

Several Committee members also believed that the term “corroboration,” or “corroborative,” would give jurors similar difficulty. This term, like “countermand,” is also undefined by statute. The corroboration requirement for solicitation has been held to be analogous to accomplice-witness corroboration in Code of Criminal Procedure article 38.14. See Richardson v. State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985). Unlike accomplice-witness corroboration, where jurors are told the standard required for corroboration (i.e., that the other evidence “tends to connect” the defendant to the commission of the offense), the statute for corroboration of the solicited person’s testimony provides no other guidance on what it might mean to be “strongly corroborative.” Nevertheless, as with “countermand,” the Committee concluded that the jury instructions should not define “corroboration” or “corroborative” as to do so (absent some agreement by the parties) would risk intruding on the jury’s prerogative to apply any accepted definition of the term in common parlance.