Defining & Defending Capital Murder in the State of Texas


The term “Capital Murder” takes its form from the Latin word capitalis, which means “regarding the head”. This is a reference to execution by beheading, which was once one of the more common forms of execution.

Therefore, any murder conviction that is eligible for the death penalty can be considered ‘Capital Murder’. Being charged with capital murder is perhaps the most serious legal challenge that an individual can face, which is why it is imperative for defendants to understand the definitions, processes, and punishments associated with capital murder in Texas.

Anyone who has been accused of capital murder should take immediate action to hire a criminal defense attorney to start building a defense, as the charges could mean death.

The Definition of Capital Murder in Texas

In the State of Texas, there are four different classes of homicide that you can be charged for. The different classes include:

  • Capital Murder
  • Murder
  • Manslaughter
  • Criminally Negligent Homicide

Unlike some other jurisdictions, Texas does not recognize the different degrees of murder (first-degree murder, second-degree murder, etc.). Instead, the difference between Capital Murder and other forms of homicide is that Capital murder is punished with either a life sentence or the death penalty.

What’s Different About a Texas Capital Murder Conviction

The Texas Penal Code section 19.03 explains the different cases in which a murder is considered Capital Murder, and not just Murder. These include murdering a peace officer, fireman, penal officer, more than one person, and an individual who is under 10 years of age, and other causes of death that have deemed to be particularly heinous.

In addition, murders committed while committing or attempting to commit kidnapping, robbery, burglary, or sexual assault will be charged as capital murder under section 19.03.

While the biggest difference between murder and capital murder is the severity of the punishment (possible death penalty vs. 99 to life).

Defending Against the Death Penalty in Texas

There are only three classes of individuals who are never eligible for the death penalty in Texas, which include individuals with mental disabilities, severe mental illness, and juveniles under the age of seventeen. Because of this, any other person convicted of capital murder might be given the death penalty as punishment for their crimes.

One of the most effective ways to defend against a capital murder charge is to demonstrate that the death was caused “under the immediate influence of sudden passion arising from an adequate cause”, in which case the offense will be punishable instead as a second-degree felony with a more limited prison sentence of only 20 years.

Like other serious criminal charges in Texas, the best defense begins before the arrest is even made. The moment you know that you’re under investigation for capital murder is the moment that you should be contacting a criminal defense attorney in order to start making a plan for your defense.

Defining ‘Capital Murder for Retaliation’

One of the defining elements of Texas Penal Code section 19.03 is the stipulation that intentional murders committed as an act of retaliation can qualify for capital murder charges, similar to any homicide that was committed during the process of carrying out a separate crime.

In many jurisdictions across the United States, establishing adequate provocation can be enough to get a charge changed from murder to voluntary manslaughter. However, this is not the case with capital murders in Texas. Even capital murders for retaliation are subject to the death penalty.

In addition, establishing adequate provocation is a complicated process that does not always lead to a favorable outcome.

Avoiding Texas’ Death Row

Since the death penalty in Texas was re-established in 1976, almost 600 prisoners have been put to death. This is significantly more than any other state, and it is often pointed to as an example of how harsh the Texas Justice Code can be for convicted offenders.

Defending against a capital murder charge is one of the most serious legal endeavors that one can engage in. For cases like these, knowing the ins and outs of the Texas legal system are absolutely necessary in order to prove your innocence, or even just to avoid the death penalty. In cases like these, hiring credible, experienced criminal defense attorney is the only way to encourage a beneficial outcome.

At Broden & Mickelsen, LLP, we have had juries return verdicts of NOT GUILTY in murder cases and have had charges reduced to “failure to leave the scene of an accident.” Our Dallas based criminal defense law firm also has had extensive experience representing people charged with crimes carrying the death penalty.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.