Hunter, Jason Dean

• Court: Court of Criminal Appeals of Texas
• Decided: June 16, 2021
• Docket: PD-0861-20
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0861-20

THE STATE OF TEXAS

v.

JASON DEAN HUNTER, Appellee

CONCURRENCE TO REFUSAL TO GRANT STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS COMAL COUNTY

K ELLER, P.J., filed a concurring opinion in which H ERVEY, R ICHARDSON, N EWELL, K EEL AND M CC LURE, 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: HUNTER CONCURRENCE — 2

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

1 The various statements of the defendant quoted in the indictment make clear that the person being solicited is the mother of the unborn child. 2 TEX . PENAL CODE § 19.06(1). 3 Id. § 15.03(a). HUNTER CONCURRENCE — 3

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

4 Id. § 15.03(c)(1). 5 See TEX . PENAL CODE §§ 8.01, 8.05. 6 Baumgart v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017). 7 See id. at 343-46. 8 See id. Of course, affirmative defenses do not have to be negated in the charging instrument either. 9 TEX . PENAL CODE § 2.03(e) (emphasis added). 10 Id. § 2.03(b), (c). HUNTER CONCURRENCE — 4

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

11 Id. § 9.31(a). 12 Id. § 22.06(a). 13 Id. § 46.15(b)(6). 14 Id. § 8.01(a). 15 Id. § 8.05(a). 16 Id. § 8.03(b). 17 Id. § 2.03(d). 18 Id. § 2.04(d). HUNTER CONCURRENCE — 5

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.

Filed: June 16, 2021

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