Chapter 19
Criminal Homicide
19.8 Instruction—Capital Murder—Murder of Peace Officer or Fireman
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 who is a [peace officer/fireman] acting in the lawful discharge of an official duty and who the person knows is a [peace officer/fireman].
[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.
Peace Officer
“Peace officer” includes [specify, e.g., police officers of an incorporated city, town, or village and reserve municipal police officers who hold a permanent peace officer license].
Knows an Individual is a [Peace Officer/Fireman]
A person knows an individual is a [peace officer/fireman] if the person is aware that the person is a [peace officer/fireman].
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, four 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];
- [name] was a [peace officer/fireman];
- [name] was acting in the lawful discharge of an official duty; and
- the defendant knew [name] was a [peace officer/fireman].
[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, 2, 3, and 4 of the offense of capital murder listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, all of the four 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.]
Definition of “In the Lawful Discharge of an Official Duty.” The court of criminal appeals has noted that—
the case law from this Court plainly holds that, for purposes of Section 19.03(a)(1) of the Penal Code, an officer acts in the lawful discharge of his official duties so long as he is on duty and in uniform; the fact that he may be effectuating an unconstitutional arrest, or a lawful arrest in an improper or unlawful manner, does not mean he is not acting in the lawful discharge of an official duty.
Ruiz v. State, No. AP-75,968, 2011 WL 1168414, at *2 (Tex. Crim. App. Mar. 2, 2011) (unpublished) (citing Montoya v. State, 744 S.W.2d 15, 29–30 (Tex. Crim. App. 1987); Guerra v. State, 771 S.W.2d 453, 460–61 (Tex. Crim. App. 1988); Hughes v. State, 897 S.W.2d 285, 297–98 (Tex. Crim. App. 1994)).
The court of criminal appeals has concluded that the statutory phrase is not unconstitutionally vague and appears to have held that a trial court did not err in failing to define it. Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010) (“[T]he phrase ‘lawful discharge of an official duty’ is not statutorily defined, but it does have an ordinary meaning that jurors can apply using their own common sense.”).
The court’s definition of the phrase is perhaps counterintuitive, given that under this definition an officer can be acting “in the lawful discharge of an official duty” even if the officer is conducting an unlawful arrest or search. Some members of the Committee believed an instruction simply providing the statutory language would sometimes fail to convey to jurors the true state of the applicable law.
Nevertheless, the Committee concluded that the Mays discussion indicated the court’s view that an instruction attempting to embody that definition would not be appropriate. Consequently, the instruction contains no such definition.
Specification of Lawful Duty. The charging instrument probably need not specify the lawful duty the victim was discharging at the time the victim was killed. See Moreno v. State, 721 S.W.2d 295, 299 (Tex. Crim. App. 1986); Aranda v. State, 640 S.W.2d 766, 770 (Tex. App.—San Antonio 1982). Nevertheless, capital murder indictments sometimes do so. If in a specific case this is done, the application of law to facts unit of the instruction should incorporate that specification. Cf. Nethery v. State, 692 S.W.2d 686, 704 (Tex. Crim. App. 1985) (instruction required prosecution to prove deceased was “acting in the lawful discharge of an official duty, namely: investigation of a parked vehicle while the said J.T. McCarthy was on radio patrol”).
Comment
Murder of a peace officer or fireman is prohibited by and defined in Tex. Penal Code § 19.03(a)(1). The definition of “peace officer” is from Tex. Penal Code § 1.07(a)(36). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.