State v. Hunter

624 S.W.3d 589 (Mem)

The STATE of Texas

v.Jason Dean HUNTER, Appellee

NO. PD-0861-20

Court of Criminal Appeals of Texas.

Filed: June 16, 2021

Anthony Benjamin Cantrell, San Antonio, for Appellee.

Joshua Presley, New Braunfels, for State.

Keller, P.J., filed a concurring opinion in which Hervey, Richardson, Newell, Keel and McClure, JJ., joined.

My reason to refuse review is simple: The State's indictment does not charge a crime under the laws of the State of Texas, the Court of Appeals's resolution was correct, and the correct resolution is so obvious that we need not grant review. A mother choosing to abort her unborn child is not a crime under Texas law, so the defendant cannot be guilty of the offense of solicitation for soliciting such a crime.

The indictment charged that Appellant, "with intent that a capital felony be committed, to-wit: the murder of the unborn child of [the child's mother], a child under the age of ten years of age, did request, command or attempt to induce the said [mother of the child] to engage in specific conduct to cause the death of said unborn child."¹ Penal Code § 19.06 says, "This chapter does not apply to the death of an unborn child if the conduct charged is ... conduct committed by the mother of the unborn child."² So the entire homicide chapter of the Penal Code, including the provision proscribing the offense of murder, "does not apply" to the mother ending the unborn child's life. The indictment contains no object crime for the crime of solicitation.

And there has to be an object crime for there to be a crime of solicitation. Solicitation requires that a person "with intent that a capital felony or felony of the first degree be committed ... requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission."³ The circumstances surrounding the mother's conduct as the defendant believes them to be would be that she would abort the child. That is not a crime, and so, would not "constitute the felony" or make the unborn child's mother "a party to its commission."

None of this reasoning is undermined by § 19.06 ’s use the word "conduct charged." The solicitation statute already incorporates that language with its own requirement that "circumstances surrounding the conduct as the actor believes them to be" would "constitute the felony or make the other a party to its commission." Nor does it matter here that the solicitation statute provides that it is no defense that "the person solicited is not criminally responsible for the felony solicited."⁴ Unlike issues such as insanity or duress,⁵ the § 19.06 language does not merely negate criminal responsibility; it says the offense provisions "do not apply."

And none of this reasoning is affected by our decision in Baumgart⁶ or the fact the § 19.06 language is treated as a defense. Baumgart dealt only with pleading requirements.⁷ If a defensive matter is not explicitly labeled an "exception" or "affirmative defense," then it is a defense for pleading purposes and does not have to be negated in the charging instrument.⁸ Pointedly, the provision that Baumgart relies upon addresses only the pleading and proof requirements of a defensive matter: "A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense."⁹ The State does not have to negate such a matter in its pleading, and it need do nothing about the issue at trial until it is raised,¹⁰ but these procedural and evidentiary consequences say nothing about whether, substantively, the defensive provision is crime-negating or responsibility-negating. For that substantive question, one must look to the defensive provision itself. Here, the defensive provision is unambiguously crime-negating: it says that the entire homicide chapter of the Penal "does not apply" to the mother's conduct to terminate the unborn child.

In fact, most defenses are crime-negating, while most affirmative defenses are responsibility-negating. Defenses include such things as self-defense,¹¹ consent in an assault case,¹² and the lawful carry of a firearm by a license-holder.¹³ If one of these defenses is established, there is no crime. On the other hand, affirmative defenses include such things as insanity,¹⁴ duress,¹⁵ and reasonable mistake of law.¹⁶ These affirmative defenses merely negate responsibility for a crime. The burden of persuasion for the respective types of defensive issues is consistent with the usual character of these issues. Once a "defense" is raised, the burden of persuasion is on the State to disprove the defense beyond a reasonable doubt.¹⁷ That standard is also the standard that applies to elements of an offense, and it tends to signify an issue relevant to whether conduct is a crime. On the other hand, the "preponderance of the evidence" standard for affirmative defenses¹⁸ tends to signify something that is not relevant to whether conduct is a crime. Does that mean that all defenses are crime negating? No. The legislature created a "safe harbor" that makes something a defense if it has not been clearly labeled an exception or an affirmative defense. The safe harbor provision means that some things that are not crime-negating will nevertheless be deemed defenses, with the applicable pleading and proof requirements. But this case is not one of those unusual instances. The defensive language "does not apply" unambiguously marks this defense as a crime-negating one.

The indictment in this case alleges something that is not an offense under the laws of Texas. Because of that, it was subject to being quashed, it was quashed, and the court of appeals correctly affirmed the trial court's order. Because this outcome is obviously correct, and no court seems to, thus far, be confused about this area of the law, I see no need to grant review.

CONCURRING OPINION

Richardson, J., filed a concurring opinion.

I concur in this Court's decision to deny review in this case. To date, thirteen judges have reviewed this case, eleven have concluded that the conduct in question does not constitute a crime under Texas law, and only one has written a dissenting opinion trying to explain why the overwhelming number of judges in this case got it wrong. The unanimous decision written by former Chief Justice Rose affirming the trial court's decision was a thorough and detailed analysis of the difficult legal issues presented in this case. Presiding Judge Keller's concurring opinion in this Court's decision to deny review also contains a detailed analysis addressing the legal issues presented. The dissent relies heavily on this Court's opinion in Baumgart to justify granting review in this case. It is important to note that as this case has progressed through the courts, not a single party or judge has mentioned Baumgart . The great weight of the dissent's argument to justify granting review relies on Baumgart ; however, the State's silence on Baumgart is deafening. Indeed, the first time Baumgart is raised on behalf of the State's plea to grant review is in the dissenting opinion; none of the parties have ever mentioned it.

The judges on this Court author opinions – majority, concurring, and dissenting opinions – that have long-term effects on the criminal justice system in our State. This Court makes hard decisions on a regular basis. Last month, we denied relief in a case that may result in a person's execution and also granted actual innocence relief to a person wrongfully convicted and imprisoned for years. Hard decisions come in many forms, but we are required to follow the law as written. All of our decisions should reflect our judicial oath to act impartially and to follow the law. We strive to do that, even though the task may be difficult, and we may be personally conflicted about the outcome.

I agree with Presiding Judge Keller when she states the Court of Appeals’ resolution was correct and is so obvious that we need not grant review. Because the law on this issue is clear, I join Presiding Judge Keller's opinion explaining why review is not warranted.

DISSENTING OPINION

Yeary, J., filed a dissenting opinion.

Does a person commit the offense of solicitation of capital murder when he threatens to harm or kill a pregnant woman if she does not cause the death of her own unborn child? In this case, the Appellee was charged with, among other things, soliciting the mother of what may have been his own unborn child to "kill it." The court of appeals’ published opinion upheld the trial court's decision to dismiss that charge from the indictment on the ground that it did not allege an offense under Texas law. But because the court of appeals’ opinion appears to (1) disregard the plain language of Penal Code Section 19.06, (2) conflict with our own precedent, and (3) improperly impede the "no defense" provision found in Penal Code Section 15.03(c), I would grant discretionary review and entertain arguments from the parties concerning the court of appeals’ decision.

I. BACKGROUND

Count I in Appellee's indictment alleged that he committed the charged offense by sending a series of text messages to E.E., the mother of the unborn child, and it contains certain excerpts from those texts. As quoted by the court of appeals, Count I of the indictment states:

COUNT I

THE GRAND JURORS, duly selected, organized, sworn and empaneled as such for the County of Comal, State of Texas, at the July term, A.D., 2016, of the 207TH Judicial District Court for said County, upon their oaths present in and to said Court that in the county and state aforesaid, and before the presentment of this indictment, on or about the 20th day of October, 2015, JASON DEAN HUNTER, hereinafter styled Defendant, did then and there, with intent that a capital felony be committed, to-wit: the murder of the

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