• Criminal Law: DWI & Misdemeanors
  • Criminal Codes
  • Attempt, Conspiracy, Aiding & Abetting
  • Misdemeanors
    • Crimes Causing Harm to Property
    • Crimes Causing Harm to People
  • Alcohol & Drug-Related Traffic Offenses
  • Resources

This chapter outlines some criminal law issues and focuses on misdemeanors, for which punishments are relatively less severe than for felonies. Felonies are covered in the Criminal Law: Felonies & White Collar Crime Chapter, along with white collar crimes, the rights of persons accused of crimes, and the rights of crime victims.

This chapter also discusses driving-while-intoxicated violations. Domestic abuse is covered in the Family Law Chapter. Criminal procedure is covered in the Process of a Lawsuit Chapter, and private causes of action that result from criminal conduct are covered in the Personal Injury Law Chapters.

Criminal law defines conduct that is prohibited by the government and the range of penalties that can be imposed for violating these prohibitions. Persons who violate criminal laws incur penalties ranging from fines to imprisonment or, in some states such as Texas, execution. Punishment for committing a misdemeanor may include jail time and/or a fine. Punishment for an infraction does not include jail time.

The law also allows authorities to seize property connected with the commission of a crime. For example, a person charged with violating laws connected with controlled substances must forfeit the substances as well as the raw materials used to make the drugs, vehicles and property used to further the crime, and any money or other proceeds from the sale of the controlled substances.

All crimes are defined by statutes. These statutes are collected and organized into books of rules known as criminal or penal codes. In addition to the Texas Penal Code, which applies only in Texas, the federal government has a criminal code that regulates certain crimes nationwide. Most criminal activity violates either a state law or a federal law, not both.

Every crime is defined by a list of elements. In a criminal trial, the prosecutor attempts to prove all the elements of the crime the person is accused of committing. If all elements are proven, the judge or the jury finds the person guilty of the crime. Even for minor criminal violations, the accused may not be found guilty unless the jury or judge finds him or her guilty "beyond a reasonable doubt."

Anyone who, with intent to commit a crime, takes a substantial step toward committing the crime may be guilty of attempt to commit a crime. Merely thinking about committing a crime, or even preparing to commit a crime, is not an attempt; there must be a substantial step. For example, if a group of teenagers talks about how easy they think it would be to walk out of a store with a pair of jeans, they have not committed a crime, nor have they committed an attempted crime. However, if they deactivate a store's alarm system so it cannot detect what passes through the doors, they probably have committed a tampering or vandalism crime as well as attempted theft. They have taken a substantial step toward the commission of the theft.

The law of conspiracy and the law of aiding and abetting are other general doctrines that apply to a wide range of offenses. Conspiracy is an agreement between two or more persons to commit a crime. For example, if three people conspire to steal a bicycle from someone's garage, and one person actually takes the bike, all three can be charged with both conspiracy and theft. Even if one conspirator backs out of the conspiracy and the other conspirators commit the crime, all conspirators may be criminally liable if the acts were reasonably foreseeable.

A person who aids or advises another in committing a crime may be guilty of aiding and abetting, and may be criminally liable for the acts of the other person, as well. Thus, if someone intentionally advises another on how to commit a crime, both persons are equally liable under the law.

Criminal codes penalize a variety of activities. Generally, an offense is any violation of the Texas Penal Code. The Penal Code divides offenses into two major categories: felonies and misdemeanors. Felonies are crimes for which a person may be sentenced to imprisonment in the state institutional division or to death. Misdemeanors are lesser crimes for which a person may be fined and/or sentenced to imprisonment in a jail. Misdemeanors are divided into classes according to the degree of seriousness and the type of punishment.

Under the Penal Code, misdemeanors range from breaking into a coin-operated machine to criminal trespass to calling 911 and remaining silent. Under the law, some crimes are misdemeanors the first time they are committed, but the person who commits the same crime a second time is charged with a felony offense.

Crimes Causing Harm to Property

Whether a crime against property is charged as a misdemeanor or a felony often depends on the value of the property taken or damaged. For example, theft--taking another person's property without consent and with the intent to deprive the person of the property--is a misdemeanor if the value of the property is under $1500. If the value is $1500 or more, the crime becomes a felony. This is true whether the theft involves tangible property or services.

Other crimes involving property are misdemeanors without regard to the value of the property. Trespassing on another's land is a misdemeanor, as is destroying a flag. Obstructing a highway, disrupting a meeting or a procession, causing a riot, and many forms of gambling are illegal misdemeanors in Texas. Other crimes against property constituting misdemeanors include breaking into a coin-operated machine and breaking into a vehicle. It is even a crime to remove, alter, or obliterate a serial number or other identification number from someone's property, or to own or sell property when one knows the permanent identification number has been removed from the property.

Crimes Causing Harm to People

Most crimes that cause injury to people are categorized as felonies. However, just because a person is not seriously injured does not mean no criminal act occurred. Many actions that hurt people are against the law and, even if they are not punishable by long prison terms, may subject the offender to criminal sanctions.

A person who commits harassment, for example, commits a Class B misdemeanor. Harassment means:

• Calling or writing to a person and in the course of the communication making an obscene comment

• Threatening a person, by telephone or in writing, with bodily injury or injury to a person's property, in a way that is likely to alarm the person

• Harassing, annoying, tormenting, embarrassing, or abusing a person by calling the person repeatedly or anonymously

• Calling a person and hanging up

Under Texas law, assault is defined as intentionally, knowingly, or recklessly injuring or threatening to injure a person or the person's spouse. Additionally, assault includes intentionally causing physical contact with another person if the offender knows the physical contact will be offensive to the victim. Assault is a misdemeanor.

Suicide is defined as taking one's own life. Suicide and attempted suicide no longer are crimes in Texas. However, it is a crime to intentionally aid or attempt to aid another person to commit suicide. If the assisted suicide is successful, or if it causes serious bodily injury, the crime is a state jail felony; otherwise it is a Class C misdemeanor.

Sex crimes constituting misdemeanors under Texas law include bigamy, homosexual conduct, incest, indecent exposure, and public lewdness. Some actions involving sex are illegal misdemeanors unless a child is involved, in which case they are felonies. For example, a person commits indecent exposure by exposing his or her genitals with the intent of arousing another person and without consideration as to who may be alarmed or offended by the exposure; indecent exposure to an adult is a misdemeanor, but indecent exposure to a child is a felony.

Other crimes against people are misdemeanors the first time they are committed, but on the second or subsequent offense, they become felonies. In other words, an offender who has been convicted previously will be charged with a felony the second time he or she commits the same crime. For example, stalking is the crime of threatening a person with bodily injury, bodily injury to the person's family, or injury to the person's property, and then on more than one occasion intentionally engaging in conduct that completes the crime of stalking. The intentional conduct may be following the person, or any other conduct engaged in with the intent to abuse, alarm, annoy, embarrass, harass, or torment the person. Generally, it is a misdemeanor to stalk someone, but if the defendant has been previously convicted of stalking, it is a third-degree felony.

Other crimes against people that are considered misdemeanors in Texas include causing a riot, abusing a corpse, prostitution, and promoting prostitution. Violating a protective order also is a misdemeanor. (Protective orders are discussed further in the Family Law Chapter.)

Alcohol and drug-related traffic offenses, commonly known as driving while intoxicated (DWI), are frequently prosecuted criminal offenses, and also carry with them administrative penalties. If the alcohol concentration in a person's blood, breath, or urine is .10 percent or greater, the person is considered intoxicated by law. Under some circumstances, the legal definition of intoxication is met even if a person's alcohol concentration is lower than .10 percent. Having alcohol, a drug, or a controlled substance in one's body that causes loss of normal use of mental or physical faculties also is considered intoxication. If the person is operating a vehicle, vessel, or even water skis in a public place, he or she is considered to be driving while intoxicated, which is a Class B misdemeanor. Boating or operating an aircraft while intoxicated also are crimes.

The minimum amount of jail time for driving while intoxicated is 72 hours, unless there is an open container of alcohol in the person's possession, in which case the jail time is at least six days. Consuming any amount of alcohol while operating a motor vehicle also is an offense.

In addition to jail time, a person who is convicted of DWI the first time will have his or her driver's license suspended for 90 days to one year. Even if there is no conviction, the positive results of a blood, breath, or urine test will result in automatic suspension of the person's driver's license. The person also may be required to complete an educational program for people who have operated motor vehicles while intoxicated. A person who fails to complete such a program when sentenced to do so may lose his or her license. A subsequent DWI conviction will result in driver's license suspension for another 18 months. In order to get the license back after the suspension period is over, the person must pay $100.

Refusing to submit to a blood, breath, or urine test in Texas also carries severe penalties. If an officer has reason to believe that a person is driving while intoxicated, and the driver refuses to submit to a test, the person's driver's license will be automatically suspended for a minimum of 90 days if the person is 21 years of age or older, and for at least one year if the person is under 21. The period of license suspension increases with every subsequent test that shows an alcohol concentration, and with each time a person refuses to submit to alcohol testing. For example, if a person refuses to be tested for intoxication and there has been an alcohol- or drug-related conviction or license suspension within the previous five years, the person will lose his or her license automatically for one year. Under any circumstances, however, the person is entitled to a hearing.

Contact Mothers Against Drunk Driving (MADD), (800) GET-MADD, for information about local MADD chapters.

The State Bar of Texas, P.O. Box 12487, Austin, TX 78711-2487, (512) 463-1463 or (800) 204-2222 ext. 2610, publishes a free pamphlet entitled If You Are Arrested.

The Victims of Crime Resource Center operates a help line at (800) VICTIMS (842-8467).