Cook v. State

MALONEY, Judge,

concurring.

I join the majority’s opinion, but write separately to point out the complications that can be expected when the majority’s opinion is applied to an offense that contains more than one “conduct element”, as that term is used in the majority’s opinion.

Understanding “conduct elements” makes sense only in the context of an “element analysis” rather than an “offense analysis”. Pursuant to an element based analysis, “a single offense definition may require a different culpable state[[ 1 ]] of mind for each objective element^ 2 1] of the offense.” Paul H. Robinson & Jane A. Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan.L.Rev. 681, 683 (April 1983) (footnotes deleted). By contrast, pursuant to an offense based analysis the entire offense is characterized by a single culpable mental state. 3 Id. The initial drafters of the Penal Code attempted to adopt the “element analysis” characteristic of the Model Penal Code. However, in removing two provisions key to the application of this analysis prior to the passage of the Code in 1974, the Legislature in effect tossed the Code into the air and allowed it to crash to the ground splintered and disjointed, leaving it to the courts to determine whether an element analysis or an offense analysis should be employed in its application. 4 Judge Clinton’s *493 concurring opinion in Lugo-Lugo attempted to pick up the pieces, and we have since applied an “element analysis” with some success in an effort to provide some precision, clarity and rationality. See generally Lugo-Lugo v. State, 650 S.W.2d 72, 89 (Tex.Crim.App.1983) (Clinton, J., joined by 3 other judges, concurring); see also McQueen v. State, 781 S.W.2d 600, 602-06 (Tex.Crim.App.1989) (offense of unauthorized use of motor vehicle encompasses two conduct elements to which mental state applies); Gardner v. State, 780 S.W.2d 259, 261-63 (Tex.Crim.App.1989) (state of mind requirement in unauthorized use of motor vehicle offense goes to both conduct and circumstances surrounding conduct, citing Lugo-Lugo, Clinton, J., concurring); Lane v. State, 763 S.W.2d 785, 787 (Tex.Crim.App.1989) (question in robbery case is whether defendant acted with knowledge or intent that bodily injury would be the result of his conduct, citing Lugo-Lugo, Clinton, J., concurring).

While an “element analysis” is the most sensical way of approaching the issue, we must be cognizant of attendant problems that can be expected to arise in the wake of the majority’s opinion. The majority holds, as did the Court in Alvarado, that in the case of a “result of conduct offense”, the definition of “intentionally and knowingly” as contained in the charge must be limited to the result of conduct language. The problem is that not all offenses are characterized by a single conduct element. As we have recognized previously, a single offense can contain any one or more of the conduct elements “which alone or in combination form the overall behavior which the Legislature intended to criminalize.” McQueen v. State, 781 S.W.2d 600, 603 (Tex.CrimApp.1989). This logically leads one to wonder how the majority’s opinion will be applied to offenses that involve more than one conduct element. 5

The majority touches on this briefly in referring to the capital murder context. See Cook, at 489 n. 3. Capital murder is usually a combination of offenses (e.g., intentional murder plus robbery), or at least a combination of one offense plus some additional aggravating conduct (e.g., intentional murder plus knowledge that the victim is a peace officer). Thus, although we have stated that murder is a result of conduct offense, that conclusion may be overly broad in a capital murder context. While intentional murder is a result of conduct offense, the additional conduct or underlying offense which renders an intentional murder a capital murder may not itself be a result of conduct offense. Therefore, it may be inadequate to include in the jury charge only the result of conduct definition of culpable mental state, when the *494 underlying offense or conduct may require a different type of mental state, such as nature of conduct or circumstances surrounding the conduct. Similarly, it may be superfluous to include in the definitions all three versions of culpable mental state, when only one or two are applicable and further fail to specify which version is applicable to which offense (intentional murder or the underlying offense or conduct).

A further question is how these problems might be practically dealt with in the charge. Should the mental state definitional portion of the charge consist of separate parts — one part applicable to the offense of intentional murder and another part applicable to the underlying offense or conduct? By way of example, following is a sample of the definitional portion of a charge which might be used in a capital murder case where the defendant has been charged with the murder of a peace officer:

The following definition of “intentionally or knowingly” applies to the portion of the application paragraph that requires you to determine whether “the defendant did intentionally or knowingly cause the death of’ the deceased:

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.

A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

The following definition of “intentionally or knowingly” applies to the portion of the application paragraph that requires you to determine whether the defendant “knew that [the deceased] was a peace officer”:

A person acts knowingly or with knowledge, with respect to circumstances surrounding his conduct when he is aware that the circumstances exist.

This example was intended to offer the bench and bar one possible way of fashioning a charge that comports with the majority’s opinion, in the case of an offense that involves multiple conduct elements. Creativity and clarity are touchstones.

With these comments, I join the opinion of the Court.

. The phrase "culpable mental state” refers to any one of the four degrees of culpability identified by the Penal Code as including intentional, knowing, reckless and criminal negligence. TexPenal Code Ann. § 6.02(d). As noted by the majority, culpable mental state is further characterized by a "conduct element”:

V.T.C.A., Penal Code, Sec. 6.03 delineates three "conduct elements" which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct.”

Cook, at 487 (quoting McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989)).

. "The term 'objective element' refers to a conduct, result, or circumstance element of an offense.” Paul H. Robinson & Jane A. Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan.L.Rev. 681, 683 n. 9 (April 1983). This Court has referred to these objective elements as "conduct elements.” McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989) (Penal Code delineates three conduct elements).

. In a traditional “offense analysis”, offenses were referred to simply in terms of intentional offenses, reckless offenses and negligent offenses. Paul H. Robinson & Jane A. Grail, Element Analysis in Defining Criminal Liability: The Model Penal Code and. Beyond, 35 Stan.L.Rev. at 683. In some respects, we apply a form of an "offense analysis” when an offense contains only one conduct element. For instance, we refer to some offenses as being "result of conduct” offenses when that is the only conduct element contained in the offense. See Cook, at 489 (intentional murder is “result of conduct” offense) (citing Martinez v. State, 763 S.W.2d 413, 419 (Tex.Crim.App.1988)); see also Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985) (injury to a child is a “nature of conduct” crime).

.The Model Penal Code utilizes an element analysis. See generally Robinson & Grail, Element Analysis, 35 Stan.L.Rev. 681; see also Model Penal Code § 2.02(1) (Proposed Official Draft 1962, American Law Institute) (culpable mental state applies to “each material element of the offense”). That the initial drafters of the 1974 Texas Penal Code attempted to integrate the element analysis is evidenced in the draft proposed to the Legislature by the State Bar Committee which provided that

Except as provided in Subsection (b) of this section, a person does not commit an offense unless he acts intentionally, knowingly, recklessly, or with criminal negligence, as the definition of the offense requires, with respect to each element of the offense.

A Proposed Revision to the Texas Penal Code, State Bar Committee on Revision of the Penal Code, § 6.04(a) (Final Draft 1970). By contrast, the Code as passed in 1974 provided (and continues to provide) as follows:

Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

TexPenal Code Ann. § 6.02(a). The underlined portion of the proposed provision, making men *493 tal state applicable to each element of the offense, does not appear in the current code. The comments to the proposed code also clearly indicated that an element analysis was intended. Id. at § 6.05 Committee Comment.

Both the 1974 Code as passed and the Committee's draft include provisions addressing the situation where the definition of an offense does not prescribe a culpable mental state. TexPenal Code Ann. § 6.02(b), (c); A Proposed Revision to the Texas Penal Code, State Bar Committee on Revision of the Penal Code, § 6.04(b),'(c) (Final Draft 1970). The proposed draft also contained a provision addressing the situation where the definition of an offense identified a culpable mental state, but did not specify to which element it applied:

If the definition of an offense prescribes a culpable mental state but does not specify the conduct, circumstances surrounding the conduct, or result of the conduct to which it applies, the culpable mental state applies to each element of the offense.

Id. at § 6.06. This provision would have made clear that an-element analysis applied. The 1974 Code as passed includes no such provision.

. Determining whether a particular offense contains more than one conduct element may in itself be problematic. Consider, for example, the case of an aggravated sexual assault. The culpable mental state applicable to that offense is "intentionally or knowingly." See TexPenal Code Ann. § 22.011(a)(1)(A) (person commits sexual assault if he "intentionally or knowingly ... causes the penetration of the anus or female organ of another person by any means, without that person’s consent”). The question is which conduct element is applicable. It could be argued that "causes the penetration” is either a result of conduct element (the result being penetration) or a nature of conduct element (the nature being penetration). It could further be argued that “without that person's consent" is a circumstance surrounding the conduct or, alternatively, that it goes to the overall nature of the defendant’s conduct. The case becomes even more complicated where an aggravated element is added. Under the Court’s opinion today, these ambiguities will need to be reconciled in the charge.