Texas Penal Code 19.03 – Capital Murder

Attorney Trey Porter
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Texas Penal Code 19.03 – Capital Murder


Capital murder in Texas is intentionally killing one or more persons, plus aggravating factors. A common example is when a person intentionally kills a police officer who is acting in his or her official capacity. One may also be charged with capital murder after intentionally killing another while committing a separate violent felony, such as aggravated robbery. Capital murder in Texas is punishable by death, or life in prison without parole.

Texas Penal Code 19.03 - Capital Murder

  • What makes murder a capital murder in Texas? Murder becomes a capital murder only if the person specifically intends to cause death, and:
    • the victim is a peace officer or fireman on duty;
    • the murder is committed in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat;
    • the person is paid or agrees to pay someone to kill another;
    • commits the murder while attempting to escape a penal institution;
    • while incarcerated in a penal institution:
      • murders an employee of the penal institution;
      • commits the murder in furtherance of a criminal activity involving three or more people;
    • kills another while serving 99 years or a life sentence for aggravated kidnapping, aggravated sexual assault, or aggravated robbery;
    • kills another while incarcerated for murder or capital murder;
    • kills two or more people in the same criminal episode, or pursuant to the same scheme or course of conduct;
    • the victim is a child under ten years of age;
    • the victim is between ages 15 and ten; or
    • the victim is a judge or justice of any court, and the murder is in retaliation for or on account of their service or status as a judge or justice.


Tex. Penal Code § 19.03. CAPITAL MURDER. 

(a) A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and:

(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;

(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6) of the Texas Penal Code;

(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;

(4) the person commits the murder while escaping or attempting to escape from a penal institution;

(5) the person, while incarcerated in a penal institution, murders another:

(A) who is employed in the operation of the penal institution; or

(B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;

(6) the person:

(A) while incarcerated for an offense under this section or Texas Penal Code Section 19.02, murders another; or

(B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Texas Penal Code Section 20.04, 22.021, or 29.03, murders another;

(7) the person murders more than one person:

(A) during the same criminal transaction; or

(B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;

(8) the person murders an individual under 10 years of age;

(9) the person murders an individual 10 years of age or older but younger than 15 years of age; or

(10) the person murders another person in retaliation for or on account of the service or status of the other person as 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.

(b) An offense under this section is a capital felony.

(c) If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.


Capital murder is a capital felony in Texas, punishable by death, or life in prison without the possibility of parole.


The punishment range for capital murder is life in prison without parole, or the death penalty. However, defendants younger than 18 at the time of the offense may not be sentenced to death. If a 17-year-old is convicted of capital murder, the only available punishment is life in prison, with parole eligibility after serving 40 years.


A person charged with capital murder is not eligible for probation or deferred adjudication. The only possible sentences are either life without the possibility of parole, or the death penalty, if the person convicted is 18 years or older.

If a person convicted of capital murder is younger than 18 years old, the only available punishment is life imprisonment. The person will be eligible for parole after serving 40 years in prison.


The justification defenses may be raised during a capital murder prosecution. 

  • What if a person kills another in self-defense in Texas? A person is justified in using deadly force against another when he reasonably believes deadly force is immediately necessary to protect against the other’s use or attempted use of unlawful deadly force.The person need not prove the victim was actually using deadly force—a person has the right to defend himself from apparent danger as he reasonably apprehends it.The victim does not need to be armed for their attack on the defendant to be considered “deadly force.” This means a person, in some circumstances, may defend himself with deadly force against an unarmed attacker.The Texas Court of Criminal Appeals has held that an assault by multiple people may justify use of deadly force. See, e.g., Rodriguez v. State, 629 S.W.3d 229 (Tex. Crim. App. 2021); Jordan v. State, 593 S.W.3d 340 (Tex. Crim. App. 2020).
  • Texas law of parties: What if the person on trial did not kill the victim? A person may be criminally responsible for another’s conduct under certain circumstances. The Texas law of parties holds a person criminally responsible for the conduct of another if the person:
    • intended the commission of the ultimate crime, and solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense;
    • intended the commission of the ultimate crime, and caused or aided an innocent or nonresponsible person to commit the crime; or
    • in an attempt to carry out a conspiracy to commit a felony, one of the co-conspirators commits another felony in furtherance of the unlawful purpose which should have been anticipated by all conspirators.

In George v. State, a pimp dropped off two prostitutes at the victim’s hotel room, planning to rob him. After the prostitutes spent some time with the victim, the pimp and another man entered the room. There was conflicting testimony as to whether the pimp just stood there, or whether he participated in severely beating the victim.

The pimp was tried for capital murder in the course of robbery, and the jury was permitted to find him guilty as either the principal actor, a party, or under a conspiracy theory of liability. He was convicted, and it was affirmed. George v. State, 634 S.W.3d 929 (Tex. Crim. App. 2021).

  • What is transferred intent in Texas? Pursuant to Texas Penal Code Section 6.04, transferred intent means that a person is criminally responsible for causing a result if the only difference between what actually occurred and what the person desire, contemplated, or risked was that either: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected.In Granger v. State, the defendant was on trial for sexually assaulting his daughter. The morning after his daughter and ex-wife testified against him, he waited for them to arrive at the courthouse, and opened fire when he saw them cross the street.He wounded them, and killed a bystander. He was convicted of capital murder, under the theory of transferred intent, because his specific intent was to kill his daughter and ex-wife in retaliation for their testimony against him. The CCA upheld his conviction under 19.03(a)(2), applying transferred intent. No. AP-77,017 (Tex. Crim. App. 2015).
  • What if the accused started the fight prior to killing the other person? If the accused “provoked the difficulty,” he or she forfeits any claim of self-defense. Texas courts have interpreted this as more than merely starting the fight. Rather, self-defense is forfeited when an accused provoked the attack in a manner reasonably calculated to give the defendant a pretext for inflicting harm.The State must show: (1) the defendant provoked the attack through action or words; (2) the action or words were reasonably calculated to provoke the attack; and (3) the provocation was intended to give the defendant a pretext for inflicting harm. See Elizondo v. State, 487 S.W.3d 185 (Tex. Crim. App. 2016).
  • What is the necessity defense in Texas? Conduct ordinarily considered criminal is justified under the necessity defense if:
    • (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; 
    • (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and 
    • (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Necessity requires confession and avoidance, meaning the accused must admit to the allegation, but argue it was immediately necessary to avoid harm.

The necessity defense is often subsumed by self-defense and defense of a third person in murder trials. Necessity is more commonly asserted as a defense to prosecutions for assault, aggravated assault, and other offenses such as driving while intoxicated.

However, even if a person is justified in using force against another, if he recklessly injures or kills an innocent third person while doing so, the necessity defense or other justification does not apply to the reckless conduct against the innocent victim.

  • What if the killing was in defense of another person? Using deadly force to protect someone is legally justified if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Texas Penal Code Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.


There is no limitation period for capital murder. A person may be prosecuted at any time after committing the offense.


A person commits capital murder by intentionally killing two or more people, or intentionally killing another in the course of committing another violent felony offense. Capital murder is also committed by intentionally killing a police officer or fireman while acting in their official capacity, killing a child, or another person for money. The death penalty is available for capital murder in Texas, but a person convicted of capital murder may also be sentenced to life without parole.


The case law regarding capital murder in Texas shows the various ways in which a murder charge may become a capital offense. 

A common scenario is a murder in the course of committing aggravated robbery. In Collins v. State, the defendant and three other men went to the victim’s friend’s home for a drug buy. The defendant brought automatic weapons and fake money, intending to rob the victim rather than paying him for the suitcase of marijuana. The victim’s friend testified the defendant and other men held them at gunpoint while stealing the marijuana, and the defendant shot the victim during an “altercation.” The group opened fire as they left. The defendant argued self-defense, but the jury rejected his claim. Conviction affirmed. No. 04-20-00139-CR (Tex. App—San Antonio Feb. 23, 2022, no pet.).

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Attorney Trey Porter

Trey Porter

Trey Porter is one of the highest-rated criminal defense attorneys in Texas. Nationally recognized, Mr. Porter relentlessly fights to protect and assert his clients’ constitutional rights in and out of courtrooms across the state.


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