Fact Summary: After taking cocaine, Nino and Bill decide they want more. Nino comes up with an idea to “scam” some more from Thomas, the boyfriend of Bill’s sister. On the way to Thomas’ house, Nino explains the details of the scam to Bill. Before arriving however, Nino drops will off and gives him a steak knife and tells him, “I may need protection.” After waiting 45 minutes, Bill walks to Thomas’ house and knocks on the door. Nino rushes out and begins beating him and cursing him for not keeping to the plan. In the process of beating him, Nino yells that he “will kill” Bill. In response to Nino’s attack, which left him with a missing tooth, Bill takes out the steak knife Nino gave him earlier and stabs Nino. Although he was stabbed, Nino orders Bill to “finish the deal” with Thomas. Thomas, however, refuses to “front” Bill any cocaine and order him to leave and take Nino. Bill leaves and drives Nino to the hospital; however Nino is dead on arrival as a result of injuries sustained by the stabbing. The events as described occurred in Texas.
Questions Presented: Under the Texas State Penal Code what possible crimes were committed by Nino, Bill and Thomas according to the facts as presented? What are the possible defenses to any crimes that occurred?
According to the facts, the following crimes occurred under Texas State Penal Code: possession of a controlled substance; criminal attempt to possess a controlled substance; conspiracy to obtain a controlled substance; solicitation; assault; aggravated assault; criminal attempt to murder; and felony murder.
The possession of a controlled substance is illegal under Texas law; however, the penalty imposed for possession of cocaine depends on the amount of drug a defendant is caught with. Under the facts of the case, we do not know how much cocaine Nino and Bill had before they took it and we also don’t know how much Thomas has in his house. However, under Texas law even the possession of one gram or less is considered a felony. In the 2014 Accordingly, Nino, Bill and Thomas at minimum could be charged with a state jail felony (TPC, 2014).
Criminal attempt occurs under Texas law when a person takes a substantial step amounting to more than preparation in the commission of the crime but fails to complete the commission of a crime (TPC, 2014).Additionally, in the 1982 case Flanagan v. State, the Texas Court of Criminal Appeals held that in an attempted murder case, the perpetrator must such: a specific intent to murder (Flanagan v. State, 1982). Moreover, a charge of criminal attempt is possible even if the crime was actually committed (TPC, 2014). In this case, after taking cocaine, Nino and Bill wanted more. To get more they planned to scam Thomas into provided him with some. Their actions of travelling to Thomas’ house to obtain some more cocaine satisfies the elements of criminal attempt to obtain a controlled substance.
In Flanagan, the defendant appealed his conviction for attempted murder arguing that there was insufficient evidence to sustain the conviction. In agreeing with the defendant, the court held that in an attempted murder case, the defendant’s intent to murder must be illustrated by proof that he had intent to kill and could or had inflicted serious bodily injury that might cause death (Flanagan v. State, 1982). In regards to the fight between Nino and Bill outside of Thomas’ house, the facts state that Nino and Bill, Nino yelled, “I will kill you” then proceeded to knock Bill down and kick him in the face with such intensity that it knocked a tooth out. That provides amble evidence of intent and ability. Accordingly, he illustrated that he had the intent to kill Bill and took a substantial step in completing it as it necessary for a charge of criminal attempt to murder.
In Texas, criminal conspiracy is defined as an agreement between two or more people to commit a crime and at least one of the parties “performs an overt act” in pursuance of the agreement. In Williams v. State, the Texas Court of Criminal Appeals held that the key element of a charge of conspiracy if the agreement between or “meeting of the minds” of the co-conspirators (Williams v. State, 1983). In Williams, the appellant appealed his conviction for conspiracy to kidnap by arguing that there was insufficient evidence to prove the charge. In finding for the defendant, the court held that the defendant never exhibited the necessary intention to commit the crime and so there could not be agreement. In this case, the situation is different. Not only did Nino explain his plan to “scam” Thomas, which Bill agreed to assist in, but Nino also showed his intent to carry out the crime by going to Thomas’ house and beginning the process to get the cocaine.
Criminal solicitation in Texas refers to the situation where a person, with the intent to commit a crime commands another into “engaging in specific conduct” that would be a crime or participate in the commission of a crime (TPC, 2014). Under the 1981 case Schwenk v. State, the Texas Court of Criminal Appeals defined command as “directing authoritatively, ordering, or exercising a dominating influence over. (Schwenk v. State, 1981). Applying the statute and case law to the facts as presented, we can find that Nino’s ordering of Bill to “finish the deal” constitutes solicitation. “Finishing the deal” meant either obtaining a controlled substance from Thomas, which as stated above is a crime. Moreover, the manner in which Bill followed Nino’s command at suggests that Nino clearly had a dominating influence over him.
Assault in Texas occurs when a person intentionally cause bodily injury to another (TPC, 2014). Aggravated Assault occurs when the bodily injury caused to another is serious and the perpetrator of the assault uses a deadly weapon (TPC, 2014). Under the facts as presented, it is clear that Nino assaulted Bill when he rushed at him from Thomas’ house. Furthermore, the intensity with which Nino beat Bill would most likely also satisfy the elements of aggravated assault. Similarly, Bill’s response to Nino’s attack not only caused serious bodily harm but also included the use of a deadly weapon, namely the steak knife.
Murder under Texas law is defined as when a person “intentionally or knowingly” causes the death of another (TPC, 2014). More specifically, murder can include the situation were a person merely intends to cause serious bodily harm to another and acts in a manner that is dangerous to others which cause a person to die. In the fact pattern under discussion, by using the steak knife, Bill clearly wanted to seriously injure Nino and stabbed him as a result. Consequently, Nino’s eventual death as a result of the stabbing constitutes murder under Texas law.
If the evidence corroborates the facts as described then a judge or jury will most likely find the defendants guilty of the charges. However, there are a number of defenses that the defendants may use in order to avoid or mitigate their guilt. These defenses include insufficient quantity of a controlled substance; self-defense and (TPC, 2014).
As mentioned, while the facts point to the fact that Nino, Bill and Thomas were in possession of cocaine; there is no evidence of the exact amount. Under Texas law, a defense to a charge of possession includes arguing insufficient quantity. Accordingly, without more evidence of the quantity, consideration must be taken as to whether or not to file this charge.
One of the most common defenses used in assault and murder cases is self-defense. Under Texas law, a successful self-defense argument might be available when the accused is confronted by a threat of unlawful force against them that they believe will bring harm to them and the threat was neither provoked by the accused. Moreover, in the 1976 case Sternlight v. State, the Texas Criminal Court of Appeals confirmed the additional requirement that the accused retreat if “a reasonable person in the defendant’s situation” would have retreated. (Sternlight v. State, 1976).
In Sternlight, the appellant argued that it was not necessary to retreat in the case of self-defense. In ruling against the appellant, the court first acknowledged that while prior state law did not require a “retreat,” common law did. Furthermore, the court found that the Texas State legislatures, inclusion of the requirement in the new penal code that was passed in 1974. Accordingly, Bill can argue that his stabbing of Nino was the result of an unprovoked attack that he did not cause to which he feared for his life and had no route of retreat or alternative to addressing it but for the use of the knife. Moreover he could also argue once the threat was eliminated he ceased any further action. Indeed, he can argue that he drove Nino to the hospital in an attempt to get him medical care.
Flanagan v. State, 675 SW 2d 734 (Tex. Crim. App. 1982). Retrieved on December 12, 2014 from https://www.courtlistener.com/opinion/1487362/flanagan-v-state/
Schwenk v. State, 733 SW 2d 142 (Tex. Crim. App. 1987). Retrieved on December 12, 2014, from https://www.courtlistener.com/opinion/2450264/schwenk-v-state/
Sternlight v. State, 540 SW 2d 704 (Tex. Crim. App. 1976). Retrieved on December 12, 2014, from https://www.courtlistener.com/opinion/2467368/sternlight-v-state/
Texas Penal Code - TPC. (2014). Retrieved on December 12, 2014, from http://www.statutes.legis.state.tx.us/?link=PE
Williams v. State, 646 SW 2d 221 (Tex. Crim. App. 1983). Retrieved on December 12, 2014, from https://www.courtlistener.com/opinion/1519840/williams-v-state/