South Texas Law Review
Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.
In Texas, there seems to be a trend to punish actors for the harm they cause, regardless of their culpability and conduct. The reliance on transferred intent principles is not limited to felony-murder in Texas. The Texas Court of Criminal Appeals held transferred intent, as applied in Honea, supplements the felony-murder rule to provide punishment for all manner of unforeseen consequences. Also, the “Calderon Law” provides punishment enhancement without regard for the culpability of the person fleeing or the risk assumed by the pursuing officer; the net result is that the lucky are punished in accordance with their fault. Neither retributivism or the “just deserts” theory is served by the increased punishment for unintended consequences.
By exploiting opportunities in pre-existing law, and creating new opportunities to punish randomly those who cause harm, Texas's courts and legislature risk undermining confidence in the criminal justice system. Texas may not identify or sympathize easily with all of those whose actions produce such harm, but reliance on “just deserts” rather than the pull of retribution will establish a system in which criminal responsibility turns primarily, and sometimes exclusively, on chance.
Gerald S. Reamey, The Growing Role Of Fortuity In Texas Criminal Law, 47 S. Tex. L. Rev. 59 (2005).