By Jason Bennyhoff
Assistant District Attorney in Fort Bend County
We’re the good guys. (Just ask us—we’ll tell you all about it!) Part of a prosecutor’s duty to seek justice includes rooting out injustice, such as those based on bias or prejudice against vulnerable members of our society.
The legislature has explicitly recognized that duty by making available punishment enhancements where offenses are committed based on a defendant’s bias or prejudice against protected classes. This article provides a primer on the availability and applicability of these enhancements.
What’s the rule?
The Texas Code of Criminal Procedure empowers the State to seek an affirmative finding that an offense was committed because of bias or prejudice.[1] This affirmative finding can apply not only to offenses against persons but also to certain property crimes.[2] Where the factfinder makes an affirmative finding that an offense was committed because of bias or prejudice, the punishment for the offense is enhanced.[3]
Affirmative findings that an offense was committed based on bias or prejudice may be made in offenses under Title 5 of the Texas Penal Code (Offenses Against the Person) and the following property crimes: Arson (§28.02); Criminal Mischief (§28.03); and Graffiti (§28.08).[4] It should be noted, however, that §12.47(a) specifically excludes injury to a disabled individual under §22.04 from a hate crime enhancement.
What classes are protected?
Bias or prejudice enhancements can be sought where the defendant selected a person or his or her property to victimize based on the defendant’s bias against “a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference, or by status as a peace officer or judge.”[5] The Code of Criminal Procedure defines “sexual preference” to include “a preference for heterosexuality, homosexuality, or bisexuality.”[6]
The Code of Criminal Procedure does not explicitly require that the victim of the offense be a member of the protected class, but rather that the defendant’s actions were motivated by his bias or prejudice against a protected class.[7] As such, it is conceivable that the State could seek (and a factfinder could make) an affirmative finding that an offense was committed based on bias or prejudice where the victim was not a member of a protected class, but that the defendant nonetheless targeted the victim based on his bias or prejudice against a protected class (for instance, in a scenario where a defendant targeted a racial justice activist based on the defendant’s bias against the racial classes on whose behalf the victim was advocating, or where the defendant perceived the victim to be a member of a particular race but was incorrect[8]).
What’s the burden of proof?
The judge or jury must find beyond a reasonable doubt that the offense was committed based on bias or prejudice.[9] When seeking an affirmative finding of bias or prejudice, prosecutors must establish facts sufficient to support the verdict in this regard beyond a reasonable doubt because anything that increases the defendant’s criminal liability must be proven beyond a reasonable doubt and explicitly decided by the factfinder in its verdict under the Apprendi doctrine.[10]
Prosecutors also must prove a causal nexus between the defendant’s bias or prejudice against the protected class and the commission of the offense.[11] This causal relationship may be proven up by circumstantial evidence, such as racial epithets aimed at the victim.[12]
Enhancements
The affirmative finding that an offense was committed based on bias or prejudice is to be made at the guilt-innocence phase of trial.[13]
With the exception of Class A misdemeanors and first-degree felonies, if the factfinder makes an affirmative finding that the offense was committed because of bias or prejudice under Art. 42.014 of the Code of Criminal Procedure, the punishment for the offense is increased to the punishment for the next higher category of offense (for example, a second-degree felony punishment range would be increased to a first-degree felony punishment range).[14] The sentencing judge may also require a defendant to attend an educational program designed to further tolerance and acceptance of others.[15]
In the case of a Class A misdemeanor, the minimum punishment is increased to 180 days’ confinement in the county jail.[16]
Oddly, this statute does not mandate an increased punishment range or mandatory minimum imprisonment for first-degree felonies.[17] Consequently, the prosecutor might well be better off not seeking a hate crime enhancement for a first-degree felony, even if the prosecution has the facts to prove one up, because it will necessarily create another point of contention at trial and another element that must be proven beyond a reasonable doubt, without the benefit of an enhanced punishment.
Additionally, the Penal Code allows prosecutors to seek assistance from the Attorney General’s Office in investigating or prosecuting offenses committed because of bias or prejudice.[18]
Conclusion
It is incumbent on us prosecutors to do justice and seek to create a more just and equitable nation. We do this every day as we seek just results in our cases and seek to protect the vulnerable members of our society. Enhancements based on bias or prejudice are a valuable tool in a prosecutor’s pursuit of justice, and I hope this article provides useful information regarding how and when to seek such enhancements. Please feel free to contact me if I can be of any assistance.
Endnotes
[1] Tex. Code Crim. Proc. Art. 42.014(a).
[2] Id. (allowing affirmative finding that offense was committed because of bias or prejudice where the victim’s property was selected for damage based on the defendant’s bias).
[3] Tex. Pen. Code §12.47.
[4] Tex. Code Crim. Proc. Art. 42.014(a).
[5] Id.
[6] Tex. Crim. Code Proc. Art. 42.014(c).
[7] Tex. Code Crim. Proc. Art. 42.014(a).
[8] See Martinez v. State, 980 S.W.2d 662, 666 (Tex. App.—San Antonio 1998, pet. ref’d) (evidence was sufficient to support finding that offense was committed against victim based on defendant’s bias or prejudice against African-American race where defendant associated victim with that race even though victim was not actually African-American), habeas corpus relief granted by No. AP-76,332, 2010 WL 1697556 (Tex. Crim. App. Apr. 28, 2010) (mem. op., not designated for publication) (remanded for new punishment trial on grounds hate crimes enhancement was not submitted to the jury in violation of Apprendi).
[9] Id.; Ex parte Boyd, 58 S.W.3d 134 (Tex. Crim. App. 2001).
[10] Id.; Apprendi v. New Jersey, 530 U.S. 466 (2000).
[11] Tex. Code Crim. Proc. Art. 42.014(a), mandating that the finding shall be entered where the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected the victim or the victim’s property because of the defendant’s bias or prejudice; see Jaynes v. State, 216 S.W.3d 839, 846 (Tex. App.—Corpus Christi-Edinburg 2006, no pet.) (the State must prove a causal connection between the defendant’s infliction of injury and his bias or prejudice in order for the hate crime enhancement to apply).
[12] Jaynes, 216 S.W.3d at 846.
[13] Id.
[14] Tex. Pen. Code §12.47(a).
[15] Tex. Code Crim. Proc. Art. 42.014(b).
[16] Id.
[17] Id.
[18] Tex. Pen. Code §12.47(b)—although such assistance is generally available even without a specific statute like this.