What is Murder vs Capital Murder DFW Murder Defense Lawyers Broden & Mickelsen

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Aggravating Factors and Special Circumstances Explained by DFW Defense Attorney

Texas law differs from federal law and other state laws in that it does not distinguish different degrees of murder. Instead, there are four kinds of criminal homicide in Texas: capital murder, murder, manslaughter, and criminally negligent homicide.

In this article, we explain the differences between murder and capital murder in Texas. As criminal defense lawyers in Dallas, we have handled hundreds of violent crimes cases at Broden & Mickelsen, LLP and achieved favorable results for our clients.

Related: What is the Difference Between Manslaughter and Criminally Negligent Homicide? Texas Defense Lawyer Mick Mickelsen Explains

Murder in Texas Legal Definition

According to the Texas Penal Code, there are three main circumstances that constitute murder in the state of Texas. To have committed a murder, an individual must have done one of three things:

  1. Intentionally or knowingly caused the death of another individual.
  2. Committed an act clearly dangerous to human life with the intent to cause serious bodily injury, leading to the death of another individual.
  3. Committed an act clearly dangerous to human life while committing or attempting to commit a felony, or during the immediate flight from the crime or attempted crime, leading to the death of another individual.
    Murder is a first-degree felony in Texas, which means that those convicted of murder will receive a sentence of five to ninety-nine years in prison.

What is the Difference Between Murder and Capital Murder in Texas?

Capital murder in Texas occurs when a murder case involves one or more of the aggravating factors outlined in the Texas Penal Code. These aggravating factors are explained below.

Murdering Specific Victims

Murdering specific victims will always elevate a murder charge to a capital murder charge. These include:

  • Peace officers and firemen provided that they are acting in the lawful discharge of their official duties and that the perpetrator knows the victim is a peace officer or fireman.
  • Employees of a penal institution in which the perpetrator is legally detained.
  • Children under the age of ten.
  • Children between ten and fifteen years old.

A judge or justice (of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court), if the murder is committed in retaliation for the victim’s status or service as a judge or justice.

Committing a Murder While Incarcerated

A murder may be elevated to capital murder if committed while incarcerated under certain circumstances, including:

  • A murder that was committed while escaping or attempting to escape from a penal institution.
  • A murder that was committed in a penal institution with the goal of establishing or maintaining a profit.

A murder that was committed by an individual in a penal institution who is serving a sentence for murder, capital murder, or while serving a life sentence or a sentence of 99 years.

Committing a Murder During Other Crimes

The other circumstances that elevate a murder charge to a capital murder charge involve the murder being committed in combination with other criminal offenses:

  • A murder that was intentionally committed while the perpetrator was committing or attempting to commit certain crimes, including kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or a terroristic threat.
  • A murder that was committed for remuneration (monetary payment) or the promise of remuneration. In this case, both the person who was hired to commit the murder and the person who hired the murderer can be charged with capital murder.
  • Multiple murders that were committed either at the same time or at different times but in pursuit of the same criminal scheme or course of conduct.

What Are the Penalties for Capital Murder in Texas?

Capital murder is a capital felony in Texas, which means that it carries harsher penalties than regular murder charges. Those convicted of capital murder will receive either a life sentence in prison or the death penalty.

What Are Special Issues In a Capital Murder Case?

In Texas capital murder cases, the death penalty is on the table. Texas is one of 31 states where capital punishment is an option for particularly heinous crimes. When delivering a guilty verdict in a capital murder case, the jury is asked to consider three special issues to decide whether the defendant should be sentenced to capital punishment or to a life sentence.

For the defendant to be sentenced to capital punishment in a Texas capital murder case, the jury must answer “yes” to the first two special issues and “no” to the third special issue. Ten of the jurors must be in agreement beyond a reasonable doubt for an answer of “yes” to be accepted for either of the first two special issues.

Special Issue #1

The first special issue asks the jury to decide if there is a probability that the defendant would commit criminal acts of violence that constitute a threat to society.

Special Issue #2

The second special issue that the jury must consider involves the intent of the perpetrator. It can be broken down into three main parts:

  1. Did the defendant actually cause the death of the victim?
  2. If the defendant did not actually cause the death of the victim, did they intend to kill the deceased or to kill another person?
  3. If the defendant did not actually cause the death of the victim, did they anticipate that a human life would be taken as a result of their actions?

Special Issue #3

If the jury answers “yes” to both of the first two special issues, they will then be asked to consider the third special issue, which involves looking at the defendant’s character, background, and moral circumstances to determine if there are any mitigating factors that make a life sentence in prison without parole a more appropriate sentence than the death penalty.

Capital Murder Defense Strategies in Texas

If you or a loved one has been accused of or charged with a crime as serious as murder or capital murder, you may feel hopeless or like there is nothing you can do but accept your fate. However, the prosecution must be able to prove beyond a reasonable doubt the defendant intentionally caused the death of the deceased. With a knowledgeable defense attorney who has experience handling Texas murder and capital murder, you may be able to get the charges against you dropped or lowered to less serious charges, depending on the circumstances of your particular case.

Several common murder defense strategies that may be used include:

Lack of intent.

Accidents do occur and in some cases, defendants may be accused of intentionally killing someone when, in fact, they were involved in an accident. Furthermore, the defendant may not have intended for their actions to lead to the death of the victim. To prove that a murder occurred, the prosecution must be able to show that the alleged perpetrator intended for their actions to kill the victim. If the defense can provide evidence that the defendant did not intend for the victim to die, the outcome of your case is likely to be more favorable.


Texas is one of the twenty-five states that use “stand your ground” law, which means that you are allowed to confront a violent threat with the use of force. To successfully argue that a homicide was self-defense and was therefore justified, the defendant must show several things:

  • they reasonably feared death or bodily harm from the victim (verbal threats and insults are unlikely to be enough to show this).
  • the defendant used a reasonable amount of force that was proportional to the severity of the threat. For example, it would be difficult to argue that shooting someone multiple times was a reasonable or proportional response to being shoved in the shoulder.
  • the defendant must not have instigated the threatening situation. In other words, if you punched someone first, they retaliated to defend themselves, and you ended up killing them, you would not be able to argue self-defense, because you instigated the threat.
  • the defendant must not have used force after the threat of death or bodily harm has passed. Showing up to someone’s house with a knife hours after they threatened you is not justifiable.

Sudden passion arising from adequate cause.

The Texas Penal Code notes that the defendant may be able to argue that the alleged crime was the result of a “sudden passion arising from adequate cause.” The Penal Code defines sudden passion as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed.” Adequate cause is defined as “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

It is important to note that showing sudden passion arising from adequate cause does not mean your charges will be dismissed. However, if successful, this strategy will result in having your charges reduced to a second-degree felony, resulting in a prison sentence of between two and twenty years.

Dallas Violent Crimes Attorneys — Broden & Mickelsen, LLP

If you have been charged with a violent criminal offense in Texas, it is crucial to discuss your case with a criminal defense lawyer who has experience handling Texas violent crimes cases. Broden & Mickelsen, LLP provides aggressive and ethical representation to individuals and businesses accused of criminal offenses. The firm accomplishes this through its unique team approach to criminal defense, which involves both partners actively participating in the case.

To achieve a favorable resolution, Broden & Mickelsen, LLP evaluate each case individually and utilize all the resources available. The Texas Board of Legal Specialization has certified criminal defense attorneys Clint Broden and Mick Mickelsen as experts in criminal law for trials and appeals.

Call Broden & Mickelsen, LLP to discuss the details of your case today: (214) 720-9552.

At Broden & Mickelsen, LLP, we are experienced Dallas criminal defense lawyers are dedicated to providing aggressive and ethical representation to individuals and businesses charged with crimes.