Main Menu
Bookmark Page
My AccountChapter 15
- 15.1 General Comments on Criminal Attempt
- 15.2 Formulating the Elements of Attempt
- 15.3 Criteria for Determining Whether Defendant Went Far Enough
- 15.4 Impossibility
- 15.5 Defining Specific Intent to Commit Partially Strict Liability Offenses
- 15.6 Renunciation Defense to Guilt
- 15.7 Punishment Mitigation by Quasi-Renunciation
- 15.8 Instruction—Attempted Murder
- 15.9 Instruction—Attempted Murder—Affirmative Defense of Renunciation (Texas Penal Code Section 15.04(a))
- 15.10 Instruction—Attempted Murder—Punishment Mitigation by Quasi-Renunciation (Texas Penal Code Section 15.04(d))
- 15.11 Instruction—Attempted Burglary of a Building
- 15.12 Instruction—Attempted Burglary of a Building—Affirmative Defense of Renunciation (Texas Penal Code Section 15.04(a))
- 15.13 Instruction—Attempted Burglary of a Building—Punishment Mitigation by Quasi-Renunciation (Texas Penal Code Section 15.04(d))
- 15.14 Conspiracy Generally
- 15.15 Instruction—Liability for Conspiracy
- 15.16 Instruction—Liability for Conspiracy—Affirmative Defense of Renunciation (Texas Penal Code Section 15.04(b))
- 15.17 Instruction—Liability for Conspiracy—Punishment Mitigation by Quasi-Renunciation (Texas Penal Code Section 15.04(d))
- 15.18 Criminal Solicitation Generally
- 15.19 Instruction—Criminal Solicitation—Solicitation of Another to Personally Commit Offense
- 15.20 Comment on Solicitation of Another to Induce Someone Else to Commit Offense
- 15.21 Instruction—Criminal Solicitation—Solicitation of Another to Induce Third Party to Commit Offense
- 15.22 Instruction—Criminal Solicitation—Affirmative Defense of Renunciation (Texas Penal Code Section 15.04(b))
- 15.23 Instruction—Criminal Solicitation—Punishment Mitigation by Quasi-Renunciation (Texas Penal Code Section 15.04(d))
Comment
Tex. Penal Code § 15.04(d) provides for submission at the penalty phase of the trial of what amounts to an issue of quasi-renunciation. A finding on this issue favorable to the defendant means “the punishment shall be one grade lower than that provided for the offense committed.”
The statute does not explicitly address placement or nature of the burden of persuasion. The language suggests the legislature intended this to be like an affirmative defense with the defendant having to establish it by a preponderance of the evidence. In Scott v. State, the court stated, “Renunciation of an inchoate offense under section 15.04(d) is a punishment-phase affirmative defense. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence.” Scott v. State, No. 2-06-335-CR, 2007 WL 2460254 (Tex. App.—Fort Worth Aug. 31, 2007, no pet.) (not designated for publication) (citations omitted).
In the Committee’s view, the legislature intended the burden of persuasion to be on the defendant and that burden to be the preponderance of the evidence. The instruction is drafted to so provide.
In several ways, the section 15.04(d) quasi-defense is less demanding than section 15.04(a)’s complete defense of renunciation. First, it does not require proof that the intended offense was not committed. Second, the renunciation apparently need not be “voluntary and complete” as is required for the defense to guilt by section 15.04(a).