Texas Criminal Attempt Law – Penal Code 15.01

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 What in Texas Constitutes a Criminal Attempt?

In Texas, a person commits the crime of solicitation when they ask another person to commit a crime. The crime they ask the other person to commit must be a first-degree felony offense or a capital felony, e.g., murder.

Again, in Texas criminal cases, the crime of criminal attempt is something different from solicitation and from the crime of conspiracy as well. A person commits a criminal attempt when, with the intent to commit a crime, they take a significant step toward the actual commission of it. The crime attempted can be any type of criminal offense.

In a criminal attempt, the offender does more than just prepare to commit the crime but has not yet gone through with the actual commission when they are caught.

Is Inviting Someone to Commit a Crime the Same as Criminal Conspiracy?

The crime of solicitation is committed when one person asks another person to commit a first-degree or capital felony crime on their behalf. Usually, the person asking is not involved in the perpetration of the crime at all. The person who does the solicitation is guilty only of solicitation and not of the crime that they ask the other person to commit.

In a conspiracy, which is yet another crime, two or more people agree and plan to commit a crime together. Everyone involved is dedicated to committing the underlying crime and is guilty of the crime if it is completed. The co-conspirators, or one or more of them, also commit an overt act in furtherance of their conspiratorial agreement.

How Else Can I Face a Criminal Attempt Charge?

A person might be charged with a criminal attempt if they complete one or more of the elements of an aggravated felony, such as aggravated kidnapping. Basically, as noted above, the way to commit an attempted crime is to intend to perpetrate it and to take a concrete step or step toward that goal.

For instance, perpetrating attempted murder would involve making significant progress toward purposefully killing another person. For example, in order to perpetrate a murder, a person could make significant steps by purchasing a gun, and with the gun in a loaded state, going to the home of the victim late at night and sitting by a window to observe the victim inside the house.

What Is the Penalty in Texas for a Criminal Attempt?

In Texas, criminal attempt is a class A misdemeanor, which is punishable by payment of a maximum fine of $4,000 and a maximum term of incarceration of 1 year in jail. A person can be sentenced to either a fine, incarceration, or both.

What Penalty Will I Receive if the Attempted Crime Is a Felony?

If the crime a perpetrator attempts is a state jail felony, the attempt offense is a Class A misdemeanor. As noted above, conviction of a Class A misdemeanor is punishable by up to a 1 in jail and payment of a fine of up to $4,000.

If the crime charged is a conspiracy and not an attempt, and the goal of the conspiracy is a felony, a person convicted of conspiracy may be subject to one of two possible sentences. If the underlying crime is punishable by anything other than death or life in prison, the person convicted may be subject to:

  • From 1 year in jail to as much as half of the maximum sentence that they would receive if found guilty of the primary offense;
  • Half of the maximum fine that would have been imposed on the offender if the primary offense had been found out;
  • Both payment of a fine and incarceration for the specified period of time.

Conspiring to commit a felony crime that carries the death penalty carries a sentence of 1 to 10 years in prison. A fine of no more than half the maximum amount for the entire violation may be imposed for attempting to commit a crime for which the punishment is a fine.

What Are Defenses to a Charge of Criminal Attempt?

Among the possible defenses to a charge of criminal attempt are:

  • The alleged perpetrator lacked the explicit intent to commit the crime, which indicates that the alleged perpetrator never really intended to do it;
  • The crime could not have been committed in the manner required by the law;
  • Whatever the perpetrator allegedly did to commit the crime did not amount to a significant step;
  • The accused voluntarily gave up or abandoned the endeavor.

A defense to crimes committed as part of a conspiracy could be that a co-conspirator left the scheme. However, for this argument to be effective, the co-conspirator must leave the conspiracy before any act necessary to its advancement has been carried out. In addition, the conspirator would have had to make their departure from the conspiracy clear and unambiguous.

Additionally, the co-conspirator needed to have actively resisted the plot. A co-conspirator could, for instance, alert local law enforcement before the conspirators commit a crime or willingly stop the other conspirators from carrying out their planned course of action.

An accused person who faces a conspiracy charge may try to disprove the charge by demonstrating that the agreement to commit the crime was fictitious or untrue, disproving the requirement of particular intent for the crime to be carried out.

However, if the perpetrator and an undercover police officer agree to participate in unlawful activity, the perpetrator may still be found guilty of conspiracy.

It is important to emphasize that this argument is only applicable to crimes requiring specific intent; if a perpetrator truly felt that they were acting lawfully, then they did not have the particular intent to commit the crime.

Although voluntary intoxication is not a complete defense, it can be used to disprove some crimes with a specific intent, including the attempt to commit a crime. A person may nonetheless be guilty of a smaller crime for which no specific intent was required.

What About Factually Impossible Situations?

A person can still be found guilty of a crime if they had the criminal intent even though they are unable to perpetrate the crime due to facts that are not known to them. For instance, even if a person purchases powdered sugar, they may still be charged with purchasing cocaine.

The Texas Penal Code spells out situations that are not defenses to a charge of criminal conspiracy. If one or more of the members of the conspiracy are found not to be criminally responsible, this is not a defense for other members.

If one or more of the co-conspirators are acquitted of the crime of conspiracy, it is not a defense for others as long as 2 or more of them have not been found not guilty of conspiracy. It is not a defense if one or more of the co-conspirators have not been prosecuted or convicted. It is not a defense if a co-conspirator, by law, is unable to commit the crime alone.

And it is notably not a defense to a conspiracy that the crime was actually committed.

Should I Speak to a Lawyer About My Charge of Criminal Attempt?

If you have been charged with criminal attempt, solicitation, or conspiracy, you want to consult a Texas criminal attorney. LegalMatch.com can connect you to an attorney who can explain the differences between these confusing offenses and identify any defenses that you may have. Your attorney can negotiate with the prosecution and represent you at hearings and at trial.


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