Texas Penal Code 15.02 – Criminal Conspiracy

WHAT IS CRIMINAL CONSPIRACY IN TEXAS?

Texas law prohibits criminal conspiracy, which is the agreement to commit a crime. If two or more people devise a plan to commit a felony, and at least one of them acts in furtherance of the plan, each person may be convicted of conspiracy to commit the object of the conspiracy.

WHAT IS THE CRIMINAL CONSPIRACY LAW IN TEXAS?

Tex. Penal Code § 15.02. CRIMINAL CONSPIRACY.

(a) A person commits criminal conspiracy if, with intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the agreement.

(b) An agreement constituting a conspiracy may be inferred from acts of the parties.

(c) It is no defense to prosecution for criminal conspiracy that:

(1) one or more of the coconspirators is not criminally responsible for the object offense;

(2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;

(3) one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;

(4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or

(5) the object offense was actually committed.

(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.

Tex. Penal Code § 15.04. RENUNCIATION DEFENSE.

(a) It is an affirmative defense to prosecution under Section 15.01 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.

(b) It is an affirmative defense to prosecution under Section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before commission of the object offense and took further affirmative action that prevented the commission of the object offense.

(c) Renunciation is not voluntary if it is motivated in whole or in part:

(1) by circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or

(2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.

(d) Evidence that the defendant renounced his criminal objective by abandoning his criminal conduct, countermanding his solicitation, or withdrawing from the conspiracy before the criminal offense was committed and made substantial effort to prevent the commission of the object offense shall be admissible as mitigation at the hearing on punishment if he has been found guilty of criminal attempt, criminal solicitation, or criminal conspiracy;

In the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided for the offense committed.

Tex. Penal Code § 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

WHAT IS THE PENALTY CLASS FOR CRIMINAL CONSPIRACY IN TEXAS?

The penalty classification for criminal conspiracy is one offense category below the object crime. For example, if a person conspires to commit murder, which would be a first degree felony if actually committed, conspiracy to commit murder is a second degree felony. The penalty classifications are as follows:

• First degree felony, punishable by five to 99 years or life in prison;
  • conspiracy to commit a first degree felony is categorized as a second degree felony;
• Second degree felony, punishable by two to 20 years in prison;
  • conspiracy to commit a second degree felony is categorized as a third degree felony;
• Third degree felony, punishable by two to ten years in prison;
  • conspiracy to commit a third degree felony is categorized as a state jail felony;
• State jail felony, punishable by 180 days to two years in a state jail facility;
  • conspiracy to commit a state jail felony is categorized as a Class A misdemeanor.

WHAT IS THE PUNISHMENT RANGE FOR CRIMINAL CONSPIRACY IN TEXAS?

The punishment range for criminal criminal conspiracy depends on the penalty class of the intended crime. The conspiracy to commit a crime carries the punishment range of one penalty class below the object offense.

• Conspiracy to commit capital murder is a first degree felony, which carries five to 99 years or life in prison, and a maximum fine of $10,000.
• Conspiracy to commit a first degree felony is punished as a second degree felony, by two to 20 years in prison, and a maximum $10,000 fine.
• Conspiracy to commit a second degree felony is punished as a third degree felony, which carries two to ten years in prison, and a maximum $10,000 fine.
• Conspiracy to commit a third degree felony is a state jail felony, with a punishment range of 180 days to two years in a state jail facility, and up to a $10,000 fine.
• Conspiracy to commit a state jail felony is a Class A misdemeanor, punishable by up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR CRIMINAL CONSPIRACY IN TEXAS?

A person charged with criminal conspiracy may be eligible for probation after a conviction, or deferred adjudication without a conviction. A judge or jury may grant probation if the defendant’s underlying prison sentence does not exceed ten years, and a deadly weapon was not used in the criminal conspiracy.

A person may also receive deferred adjudication after a plea of guilty or nolo contendere (“no contest”) to a judge. The length of community supervision depends on the offense category:

• First degree felony, second degree felony, or third degree felony community supervision may not exceed ten years;
• State jail felony community supervision may range between two and five years, with the possibility of extending supervision for up to ten years;
• Class A misdemeanor community supervision may not exceed two years;

WHAT ARE THE DEFENSES TO CRIMINAL CONSPIRACY IN TEXAS?

In addition to other defenses available for all crimes, Texas law authorizes a renunciation defense for criminal attempt, conspiracy, and solicitation. 

• What is the renunciation defense to criminal conspiracy? A person accused of engaging in a criminal conspiracy may attempt to show he or she voluntarily and completely renounced his criminal objective by withdrawing from the conspiracy before the commission of the object offense, and took further affirmative action that prevented the commission of the object offense.

• What if a person charged with criminal conspiracy agreed to commit one crime, but not all crimes committed by the co-conspirators? Section 7.02(b) specifically assigns criminal responsibility to all co-conspirators for any felony actually committed in furtherance of the unlawful purpose, regardless of whether they intended to commit it, if the offense should have been anticipated as a result of the carrying out of the conspiracy.For example, in Hight-Ealy v. State, the defendant and his friends decided to steal weed from the victim. One of the co-conspirators was known to carry a gun, and was awaiting sentencing for aggravated assault. While stealing the marijuana, the co-conspirator shot the victim, and the defendant was convicted of aggravated robbery.The appellate court affirmed, holding the co-conspirator shooting the victim was a reasonably foreseeable act in furtherance of the intended crime. The defendant could thus be convicted without being the actual shooter. No. 07-21-00219-CR (Tex. App.—Amarillo Feb. 3, 2023, no pet.).

WHAT IS THE STATUTE OF LIMITATIONS FOR CRIMINAL CONSPIRACY IN TEXAS?

The limitation period for criminal conspiracy is the same as the most serious offense that is the object of the criminal conspiracy.

CRIMINAL CONSPIRACY IN TEXAS

A person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in the conspiracy, as long as another conspirator commits some overt act in furtherance of the conspiracy. A person may not be convicted based on the uncorroborated testimony of a co-conspirator.

TEXAS CRIMINAL CONSPIRACY COURT CASES

The case law regarding criminal conspiracy in Texas illustrates how people may be held criminally responsible for all foreseeable acts of their co-conspirators.

• In Howard v. State, the defendant and her two friends stole shirts from a store, and crashed into another vehicle, killing the driver, as they sped away from police. The defendant was convicted of felony murder as a party, committed in furtherance of a conspiracy to commit state jail felony shoplifting. On appeal, she argued the conspiracy to commit a state jail felony could only be charged as a Class A misdemeanor, so she did not commit felony murder.
  
  The appellate court affirmed, explaining she was indicted as a party to felony murder under Section 7.02(b), the underlying felony being the state jail felony shoplifting. 527 S.W.3d 348 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
• In DePue v. State, the defendant and three others conspired to commit burglary. They broke into the victim’s house to steal her things, and one of them shot her. The defendant claimed he was there for the burglary, but left before the victim was shot. He was convicted of capital murder, but argued on appeal he withdrew from the conspiracy. The appellate court affirmed, holding: (1) he was charged under Section 19.03, not 15.02, so the renunciation defense did not apply; and (2) even if it did, he completed the burglary, and did not take affirmative steps to prevent it. No. 04-08-00487-CR (Tex. App.—San Antonio 2009, no pet.).