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).
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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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