Chapter 19
Criminal Homicide
19.13 Instruction—Capital Murder—Murder of Individual under Ten Years of Age
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of capital murder.
Relevant Statutes
A person commits the offense of capital murder if the person intentionally or knowingly causes the death of an individual under ten years of age.
[Include the following if an instruction on causation is appropriate but no issue of concurrent causation is raised by the facts.]
A person causes the death of another if, but for the person’s conduct, the death of the other would not have occurred.
[Include the following if the facts raise an issue concerning concurrent causation.]
A person causes the death of another if, but for the person’s conduct operating either alone or concurrently with another cause, the death of the other would not have occurred, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the person was clearly insufficient.
Definitions
Intentionally Causing the Death of an Individual
A person intentionally causes the death of an individual if the person has the conscious objective or desire to cause that death.
Knowingly Causing the Death of an Individual
A person knowingly causes the death of an individual if the person is aware that his conduct is reasonably certain to cause that death.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly caused the death of [name] [insert specific allegations, e.g., by shooting [name] with a gun]; and
- [name] was under ten years of age.
[Include the following if the jury was instructed in the relevant statutes unit on concurrent causation.]
The state has the burden of proving that the defendant caused the death of [name]. To prove that the defendant caused the death of [name], the state must show, beyond a reasonable doubt, that either—
- [concurrent cause] did not contribute to causing the death of name;
- [concurrent cause] was clearly insufficient, by itself, to cause the death of [name]; or
- the conduct of the defendant was clearly sufficient to cause the death of [name] regardless of [concurrent cause].
[Continue with the following.]
You must all agree on elements 1 and 2 of the offense of capital murder listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or both of elements 1 and 2 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, both of the two elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
Murder of an individual under ten years of age is prohibited by and defined in Tex. Penal Code § 19.03(a)(8). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.
The instruction does not require the state prove any awareness by the defendant of the age of the victim. Section 19.03(a)’s incorporation of section 19.02(b)(1) means the killing must be intentional or knowing. Does this apply not only to the causing of death but also to the required circumstance that the victim be under ten years of age?
Most likely it does not. See Johnson v. State, 967 S.W.2d 848, 849–50 (Tex. Crim. App. 1998) (en banc) (rejecting appellant’s argument that he should not be guilty of indecency with a child unless he knew the victim was under the age of seventeen). “Given [the] case law and legislative tradition running squarely against appellant’s notion that the State must prove his knowledge of the victim’s age, and given the failure of the legislature to specifically require such knowledge when it required knowledge of the victim’s presence, appellant’s position must fail.” Roof v. State, 665 S.W.2d 490, 492 (Tex. Crim. App. 1984) (en banc). Thus, even though some of section 19.03(a)’s subdivisions require a culpable mental state in addition to the requirement that the predicate killing be intentional or knowing; the lack of any such demand in section 19.03(a)(8) suggests the legislature intended no such culpable mental state.
Finally, Texas courts have been generally reluctant to read crimes designed to protect children as requiring awareness of the victim’s status as a child or age. See Fleming v. State, 455 S.W.3d 577, 582 (Tex. Crim. App. 2014). They will almost certainly follow this approach with regard to section 19.03(a)(8). See also White v. State, 509 S.W.3d 307, 313 (Tex. Crim. App. 2017) (“[W]hen it comes to the protection of children, we have frequently declined to impose a culpable mental state upon a circumstance-surrounding-conduct element of the offense in the absence of an express assignment of such a mental state—even when it was a circumstance that elevated the level of the offense.”)