624 S.W.3d 589
Tex. Crim. App.2021Background
- Appellee Jason Dean Hunter was indicted for, among other offenses, soliciting the mother (E.E.) to cause the death of her unborn child via threatening text messages.
- Count I quoted numerous explicit texts in which Hunter threatened violence and told E.E. to "kill" or otherwise ensure the unborn child did not survive.
- Hunter moved to quash Count I, arguing it did not allege a prosecutable offense; the trial court granted the motion and dismissed that count.
- The court of appeals affirmed, reasoning Tex. Penal Code § 19.06(1) ("this chapter does not apply" to conduct committed by the mother) meant the mother’s conduct would not be a homicide offense, so Hunter could not have solicited a capital murder.
- The State petitioned for discretionary review to the Court of Criminal Appeals; the opinion before us is a dissent arguing the court of appeals misread § 19.06, conflicts with precedent (Baumgart), and improperly nullifies § 15.03(c)’s "no defense" rule for solicitation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hunter / Court of Appeals) | Held |
|---|---|---|---|
| Whether solicitation of capital murder is prosecutable when the person solicited is the mother of the unborn child | §15.03(c) makes it "no defense" that the person solicited is not criminally responsible; solicitation is prosecutable even if solicitée (mother) cannot be charged for homicide | §19.06(1) means Chapter 19 does not apply to conduct by the mother, so the mother’s conduct would not be a homicide (or felony) and thus cannot be the basis of solicitation | Court of appeals: quashed Count I; held solicitation cannot stand because the solicited act would not be a criminal homicide under Chapter 19 |
| Whether §19.06(1) is an exception that negates the offense definition or a defense governed by §2.03 | State (and dissent) invoke Baumgart: "does not apply" provisions function as defenses, not exceptions; §19.06 therefore does not categorically remove conduct from the statutory definition of homicide | Court of appeals treated §19.06(1) as an exception, reading it to exclude the mother’s conduct from Chapter 19 entirely | Court of appeals treated §19.06 as excluding mother’s conduct (exception-like); dissent urges review based on Baumgart conflict |
| Effect of §15.03(c) "no defense" clause when solicited actor cannot be prosecuted | §15.03(c)(1) should permit prosecuting a solicitor even if the solicited person is not criminally responsible; the statutory purpose is to punish those who recruit others to do killings | Court of appeals: because the solicited conduct would not be a homicide/offense, the phrase "the felony solicited" is not satisfied and §15.03(c) does not save prosecution | Court of appeals rejected State’s §15.03(c) argument; dissent contends that ruling undermines the solicitation statute’s purpose |
Key Cases Cited
- State v. Hunter, 606 S.W.3d 836 (Tex. App.—Austin 2020) (court of appeals affirmed quash of solicitation count based on §19.06 non‑applicability to mother)
- Baumgart v. State, 512 S.W.3d 335 (Tex. Crim. App. 2017) ("does not apply" statutory language construed as a defense, not an exception)
- Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007) (holding unborn child is an "individual" for homicide statutes)
- Pesch v. State, 524 S.W.2d 299 (Tex. Crim. App. 1975) (defenses like insanity excuse punishment but do not negate that conduct would otherwise constitute an offense)
- Saxton v. State, 804 S.W.2d 910 (Tex. Crim. App. 1991) (State need not produce evidence negating a defensive theory; must still prove guilt beyond a reasonable doubt)