When a family calls about a death, “it was an accident” can mean several things. Sometimes they are describing what a witness saw. Sometimes they mean the accused did not want anyone to get hurt. I would ask them to explain before drawing any conclusion about the charge.

Texas has separate offenses for murder, manslaughter and criminally negligent homicide. Choosing among them requires more than deciding how serious the injury was. The indictment tells counsel what the prosecutor alleges; the evidence has to support that allegation.

Reading the allegation of murder

With Section 19.02(b)(1), I would ask whether the State claims the accused intended the death or knowingly caused it. Intent means that causing death was the person’s objective or desire. Knowledge of the result means awareness that the conduct was reasonably certain to cause death. These are different allegations even though they appear in the same subsection.

I would not assume this is the subsection being used. An intent to cause serious bodily injury, followed by an act clearly dangerous to human life that causes death, is another route under Section 19.02. Felony murder has its own requirements. The chapter also includes a provision concerning certain deaths from specified controlled substances. Counsel has to identify the route before evaluating a claim that there was no intent to kill.

A warning and what it might establish

If a witness recalls shouting a warning, I would ask the investigator to find out what happened next. An answer from the accused might help establish that the words were heard. If there was no answer, I would want to know the distance between the two people and what else was happening around them.

The State would have to prove that the accused caused the death recklessly for a conviction under Section 19.04. I would turn to Section 6.03 to explain that word to the family. It means recognizing a substantial, unjustifiable risk and consciously disregarding it. We would then have to consider how far that conduct departed from ordinary care. The law requires a gross deviation, assessed in the circumstances from the accused’s standpoint.

That definition is why the details of a warning could matter. If I am relying on a witness to establish awareness, I need the witness’s observations. I cannot substitute my own assumption about what someone must have known.

A risk that was not recognized

For criminally negligent homicide, I would be discussing what the person ought to have recognized. Sections 19.05 and 6.03 address failure to perceive the substantial, unjustifiable risk. The failure must amount to a gross deviation from ordinary care, again considered in the circumstances from the accused’s standpoint. Without that requirement, the discussion could wrongly treat every instance of carelessness as criminal.

Suppose an interview summary says only that the person “was careless.” I would request the interview itself. A recording may tell us what the witness meant. Until then, that description gives me very little to compare with the statutory test.

There is also the cause of death to examine. A mental-state allegation does not replace proof of causation. Counsel may need medical or other expert assistance to evaluate a disputed connection between the conduct and the death.

What I would check before discussing punishment

Someone comparing these charges will usually encounter three classifications:

Murder: first-degree felony.

Manslaughter: second-degree felony.

Criminally negligent homicide: state jail felony.

I would not hand a client that list as a sentencing answer. For murder, there is a sudden-passion provision to consider. Manslaughter has a first-degree exception under Section 19.04 for specified Section 28.09 conduct that causes death. I would also need to check for enhancements.

Bring the indictment to the consultation, even if the family has already described the case over the phone. I would want to read it before advising on exposure or discussing whether a lesser-offense instruction might be available. The latter also depends on what the evidence at trial supports.

Legal sources

Texas Penal Code Chapter 19, Sections 19.02, 19.04 and 19.05.

Texas Penal Code Chapter 6, Sections 6.03 and 6.04.

General information about Texas law, not legal advice for a particular case. Reading this article does not create an attorney-client relationship.